R( 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CASES 


ON 


THE  CONFLICT  OF  LAWS 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


ERNEST  G.  LORENZEN 

'I! 

PH.  B.,  LL.  B.   (CORNELL),  J.  U.  D.  (GOTTINGEN) 
PROFESSOR  OF  LAW  IN  THE  GEORGE  WASHINGTON  UNIVERSITY 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL   EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1909 


T 

L  88nt  CO 
^9  0  3 

Copyright,  1009, 

BY 

WEST  PUBLISHING  COMPANY 
(Lor.  Conf.  L.) 


^ 


To 

JOHN   H.   WIGMORE 

as  a  slight  recognition  of  his  great  services 

to  scholarship  in  the  law. 

(iii)* 


687125 


THE  AMERICAN  CASEBOOK 
SERIES. 


For  years  past  the  science  of  law  has  .been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem ;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory ;  it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be.  short,  is  at  best  a  summary,  and  a  summary  presup- 
suposes  previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life ;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison  of   many   cases   establishes   a   general   principle,  and 

(v) 


Vi  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a. sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed-  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for* 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  rnany  students  in  all  schools,  the  mat- 
ter 'of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  wnth  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge',  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its_  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  Vll 

treated  to  afford  a  basis  for  comparison  and  discrimination;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training-  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly :  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general. principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth;  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difiiculty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


Viii  PREFACE. 

If  It  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  Thq  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 


Administrative  Law. 

Insurance. 

Agency. 

International  Law. 

Bills  and  Notes. 

Jurisprudence. 

Carriers. 

Mortgages. 

Contracts. 

Partnership. 

Corporations. 

Personal  Property,  including 

Constitutional  Law. 

the  Law  of  Bailment. 

Criminal  Law. 
Criminal  Procedure. 

Real  Property.  \  2d     ^"^' 
(3d       " 

Common-Law  Pleadinr 

Public  Corporations. 

Conflict  of  Laws. 

Quasi  Contracts. 

Code  Pleading. 

Sales. 

Damages. 

Suretyship. 

Domestic  Relations. 

Torts. 

Equity. 

Trusts. 

Equity  Pleading. 

Wills  and  Administration. 

Evidence. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comjjarison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  IX 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects: 

George  W.  Kirch wey.  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine.  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Lazu. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.     Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Dean  of  the  University  of  Nebraska  School 
of  Law.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


X  PREFACE. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.  Snb- 
ject,  Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes. 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr.,  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  Mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Lazu. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
itl.    Subject,  Conflict  of  Lazi's. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 
Subject,  Public  Corporations. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Lazv;  General  Jurisprudence; 
Equity. 

The  following  books  of  the  Series  are  now  published,  or  in  press: 
Partnership,  by  Eugene  A.  Gilmore,  Professor  of  Law,  University  of 
Wisconsin;  Criminal  Law,  by  Wm.  E.  Mikell,  Professor  of  Law, 
University  of  Pennsylvania;  Damages,  by  Barry  Gilbert,  Professor  of 
Law,  University  of  Illinois ;  Conflict  of  Laws,  by  Ernest  G.  Lorenzen, 
Professor  of  Law,  George  Washington  University;  Trusts,  by  Thad- 
deus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 

James  Brown  Scott, 

General  Editor. 
Washington,  D.  C,  January,  1909. 


PREFACE. 


With  the  growing  intercourse  among  nations  the  subject  of  Conflict 
of  Laws  (Private  International  Law)  must  constantly  gain  in  impor- 
tance in  legal  practice.  The  more  cosmopolitan  society  becomes,  the 
more  useful  and  indispensable  will  be  a  knowledge  of  the  rules  govern- 
ing this  subject  in  foreign  countries.  The  practical  value  to  the  lawyer 
of  a  general  familiarity  with  such  foreign  rules  suggested  to  the  editor 
the  appropriateness  of  indicating  under  each  topic  treated  the  funda- 
mental differences  existing  between  the  Anglo-American  and  continen- 
tal systems.  Considerations  of  space  and  a  regard  for  the  primary 
object  of  this  work  as  a  student's  book  made  it  necessary  to  limit  the 
exposition  of  the  continental  law  to  that  of  France,  Germany,  and 
Italy — the  countries  wherein  this  newest  branch  of  legal  science  has 
found  its  highest  development. 

For  the  sake  of  brevity  I  have  referred  to  the  Journal  du  Droit 
International  Prive,  edited  by  E.  Clunet,  to  the  Revue  de  Droit  In- 
ternational Prive  et  de  Droit  Penal  International,  edited  by  A.  Darras, 
to  the  Revue  Internationale  du  Droit  Maritime,  edited  by  F.  C.  Autran, 
and  to  the  Zeitschrift  fiir  Internationales  Privat-  und  Strafrecht,  edited 
at  present  by  Th.  Niemeyer,  by  the  name  of  their  respective  editors. 

The  labor  involved  in  the  presentation  of  the  French  and  Italian 
law  has  been  materially  lightened  by  the  assistance  of  J.  Basdevant, 
Professor  at  the  University  of  Grenoble,  and  of  G.  C.  Buzzati,  Profes- 
sor at  the  University  of  Pavia  and  member  of  the  Institute  of  Interna- 
tional Law.  Thanks  to  the  collaboration  of  Professor  Buzzati,  it  has 
become  possible,  also,  to  refer  to  Italian  cases  contained  in  reports 
other  than  the  Annali,  Giurisprudenza  Italiana,  Foro  Italiano,  La  Leg- 
ge,  and  Monitore  dei  Tribunali,  which  were  the  only  Italian  reports 
accessible  to  me.  It  is  with  pleasure  that  I  acknowledge  my  obliga- 
tions to  these  gentlemen  for  their  hearty  co-operation. 

In  connection  with  the  English  and  American  law  I  have  derived 
the  greatest  assistance  from  the  well-known  treatises  on  Conflict  of 
Laws  by  Dicey,  Foote,  Westlake,  Minor,  Story,  and  Wharton,  and 
from  the  most  excellent  collection  of  cases  by  Professor  Joseph  H. 
Beale,  Jr.  For  want  of  better  or  equally  good  illustrative  cases  it  has 
become  necessary  to  reproduce  in  this  work  many  of  the  cases  used 
by  Professor  Beale. 

WasliiDgton,  D.  C,  January,  1909.  E.  G.  L. 

(xi)* 


TABLE  OF  CONTENTS. 


Page 

List  of  Authorities xv 

Table  of  American  and  English  Cases xix 

PART  I. 

General  Provisions. 

chapter  i. 
Nature  of  the  Subject 1 

CHAPTER  II. 

,   '"""■" " 

J  ^     \  CHAPTER  III. 

Procedure   51 

CHAPTER  IV. 
Judgments    86 

CHAPTER  V. 

Domicile. 
Section 

1.  In  General 176 

2.  Of  Married  Women 210 

3.  Of  Minors 216 

CHAPTER  VI. 

Capacity. 

1.  Natural  Persons 218 

2.  Corporations    246 

CHAPTER  VII. 

FoBM    2.j4 

Lor.Conf.L.  (xiii) 


^. 


X17  TABLE    OF   CONTENTS. 

PART  II. 

Particui^ar  Subjects. 

CHAPTER  I. 

Property. 
Section  Page 

1.  Iniinovables 271 

2.  Movables  281 

^     I.     Tangible  281 

11.     Intangible 322 

CHAPTER  II. 

Obligations. 

1.  Contracts    340 

I.     In    General 340 

II.     Special    Contracts 405 

(A)  Agency  and  Partnershii > 405 

(B)  Guaranty  and  Suretyship 415 

(C)  Bills  and  Notes 420 

(D)  Carriers    446 

2.  Torts 469 

CHAPTER  III. 

Family  Law. 

1.  Marriage 510 

2.  Divorce    536 

3.  Legitimation  and  Adoption 566 

4.  Matrimonial  Property 592 

CHAPTER  IV. 

Inheritance. 

1.  Intestate   Succession 626 

2.  Testamentary  Succession   629 

3.  Execution  of  Powers  in  a  Will 672 

CHAPTER  V. 

Foreign   Administrations. 

L     Executors  and  Administrators 683 

2.     (juaidians     716 

'.',.     Hecei\ers  and  Trustees  in  Bankruptcy 722 

APPENDIX. 
Conventions  of  the  Hague,  Relating  to  Conflict  of  Laws 756 


LIST  OF  AUTHORITIES. 


1.  AUTHORITIES   IN  ENGLISH. 

V.  Bar,  The  Theory  and  Practice  of  Private  Interuational  Law.  Translated 
from  the  German  by  G.  R.  Gillespie.     (2d  Ed.)  1892. 

Beale,  a  Selection  of  Cases  on  the  Conflict  of  Laws.  3  vols.  190(>-1902. 
Vol.  1,  2d  Ed.,  1907. 

BuEGE,  Commentaries  on  Colonial  and  Foreign  Laws.  4  vols.  1838.  New 
edition  in  5  vols.     Vols.  1  and  2.     London,  1907-1908. 

Dicey,  A  Digest  of  the  Law  of  England  with  Reference  to  the  Conflict  of 
Laws.     (2d  Ed.)  London,  1908. 

FooTE,  Concise  Treatise  on  Private  International  Jurisprudence.  (3d  Ed.) 
London,  1904. 

Meili,  International  Civil  and  Commercial  Law.  Translated  from  the  Ger- 
man by  Arthur  K.  Kuhn.     1905. 

Mince,  Conflict  of  Laws,  or  Private  International  Law.     1901. 

Nelson,  Selected  Cases,  Statutes,  and  Orders  Illustrative  of  the  Principles 
of  Private  International  Law  as  Administered  in  Eiigland,  with  a  Com- 
mentary.    1889. 

Phillimore,  Commentaries  upon  International  Law.  (3d  Ed.)  Vol.  IV. 
"Private  International  Law  or  Comity."     London,   1889. 

Rattigan,  Private  International  Law.     1895. 

RoRER,  American  Interstate  Law.     (2d  Ed.)  1893. 

Savigny,  a  Treatise  on  the  Conflict  of  Laws.  Translated  from  the  German 
by  Wm.  Guthrie.     1880. 

Stoey,  Commentaries  on  the  Conflict  of  Laws.     (8th  Ed.)  1883. 

Westlake,  a  Treatise  on  Private  International  Law.    (4th  Ed.)  London,  1905. 

Wharton,  A  Treatise  on  the  Conflict  of  Laws.     (3d  Ed.)  1905. 

2.  AUTHORITIES   IN  FRENCH. 

Actes  de  la  Conference  de  la  Haye  chargee  de  reglementer  diverses  matiSres 

de  Droit  International  Privg.     1893,  1894,  1900,  1904. 
AuDiNET,  Principes  elementaires  du  droit  international  prive.     (2d  Ed.)  1900. 
Autran,  Revue  Internationale  du  droit  maritime.    1885-1909. 
Bard,  Precis  de  droit  international  p§nal  et  prive.     1883. 
Bartin,  Etudes  de  droit  international  privg.     1899. 
Brocher,  Cours  de  droit  interuational  prive  suivant  les  principes  consacres 

par  le  droit  positif  frangais.    3  vols.  1882-1885. 
Clunet,  Journal  du  droit  international  prive.     1874-1909. 
CoNTuzzi.   Commentaire  theorique  et  pratique  des  Conventions  de  la   Haye 

concernant  la  codification  du  droit  international  priv6.     Vol.  1.     1904. 
Darras,  Revue  .de  droit  international  privg  et  de  droit  penal  international. 

1906-1909. 
Despagnet,  Precis  de  droit  international  prive.     1904. 

LOR.CONF.L.— b  (xv) 


XV]  LIST   OF   AUTHORITIES. 

DoNXEDiEU  DE  Vabres,  L'gvoliition  de  la  jurisprudence  frangaise  en  mati^re 

de  conflits  des  lois.     1905. 
Id.,  L'article  3  du  Code  Civil  et  la  jurisprudence  frangaise  de  1804^1904.     2 

Darras.  684-699,  829-860. 
DuRAND,  Essai  de  droit  international  prive.     1884. 
ESPERSON,    Le    droit    international    prive    dans    la    legislation    italienne.     6 

Clunet,  329-351;    7  Id.  245-259;    337-346;      8  Id.  206-230;    9  Id.  154- 

166,  270-288;    10  Id.  263-275;    11  Id.  16.S-178,  251-270,  365-387,  604-613. 
FioRE,   Le   droit  international   prive.     Translated  from   the  Italian   by   Ch. 

Antoine.     1890-1903. 
FoELix,  Traite  de  droit  international  prive.     (4th  Ed.)  2  vols.  1866. 
JiTTA,  La  methode  du  droit  international  priv§.    1890. 
Id.,  La  substance  des  obligations  dans  le  droit  international  priv6.    2  vols. 

1906-1907. 
Keidel,  Le  droit  international  prive  dans  le  nouveau  Code  Civil  Allemand. 

25  Clunet,  867-S87 ;   26  Id.  17^7,  239-278. 
Laine,  Introduction  au  droit  international  prive.     2  vols.  1888,  1892. 
Laurent,  Le  droit  civil  international.     8  vols.  lSSO-1882. 
Mailher  de  Chassat,  Traite  des  statuts  d'apres  le  droit  ancien  et  le  droit 

moderne  ou  du  droit  international  prive.     1845. 
Fillet,  Principes  de  droit  international  prive.     1903. 
Id.,  Droit  international  prive.     1905. 

ROLIN,  Principes  du  droit  international  prive.     3  vols.  1897-1903. 
SuRviLLE  ET  Abthuys,   Couts  elemeutaire  de  droit  international  prive.     (3d 

Ed.)  1900. 
Du  Vareilles-SommiSres,  La  synthese  du  droit  international  prive.    2  vols. 

1897. 
Vincent  et  Penaud,   Dictionnaire  de  droit  international  prive.     1887-1888. 
Weiss,   Traite   theorique   et  pratique  de   droit   international  prive.     5  vols. 

1894-1905. 

3.  AUTHORITIES  IN  GERMAN. 

V.  Bab,  Theorie  und  Praxis  des  internationalen  Privatrechts.     2  vols.  1889. 

Id.,  Lehrbuch  des  internationalen  Privat-  und  Strafrechts.    1892. 

Id.,  Internationales  Privatrecht.  (In  Encyclopiidie  der  Rechtswissenschaft 
by  Holtzendorfe  [6th  Ed.  by  Kohler],  1004). 

Barazetti,  Das  Internationale  Privatrecht  im  Biirgerlichen  Gesetzbuche  fiir 
das  deutsche  Reich.     1897. 

BoHM,  Die  raumliche  Herrschaft  der  Rechtsnorraen  (ortliche  Statutenkolli- 
sion)  auf  dem  Gebiete  des  Privatrechts,  einschliesslich  des  Handels-, 
Wechsel-  und  Konkursrechts.  Nach  Theorie  und  Rechtsprechung  unter 
besouderer  Beriicksichtigung  der  Entscheidungen  der  obersten  deutschen 
Gerichtshofe  zum  Handgebrauche  fiir  die  Praxis.     1890. 

Id.,  Handbuch  der  internationalen  Nachlassbehandlung  mit  besonderer  Riick- 
sicht  auf  das  deutsche  Reich  und  die  einzelneu  Bundesstaaten.  (2d  Ed.) 
1895. 

Id.,  Handbuch  des  Rechtshilfeverfahrens  Im  Deutschen  Reiche  sowie  im  und 
gegentlber  dem  Auslande  in  biirgerlichen  Rechtsstreitigkeiten,  in  Kon- 
kurspachon,  in  Angelegenheiten  der  freiwilligen  Gerichtsbarkeit  und  in 
Verwaltungssachen.     (3d  Ed.)  1906. 

Leske  &  Lowenfeld,  Die  Rechtsverfolguug  im  internationalen  Verkehr,  Ber- 
lin, 1S95-.  (4  vols,  have  so  far  appeared.) 


Robert  E.  Stone 


LIST   OF   AUTHORITIES.  XVll 

Meili,  Das  international e  Civil-  nnd  Handelsrectit.     1902. 

Id.,  Das  internationale  Civilprozessrecht.     1906. 

NiEMEYER,    Das    internationale    Privatrecht    des    Biirgerliclien    Gesetzbuchs. 

1901. 
Id.,  Zeitsclirift  fiir  internationales  Privat-  und  Strafrecht.    1890-1909. 
Planck,  Burgerliclies  Gesetzbuch.     Vol.  VI.  (3d  Ed.)  1905. 
Savigny,  System  des  heutigen  romischen  Recbts.     Vol.  VIII. 
ScHAFFNEE,  Entwickelung  des  internationalon  Privatrecbts.    1841. 
ZiTELMANN,  Internationales  Privatrccbt.     2  vols.  1897,  1898. 
ZiTELMANN  UND  NiEMEYEK,  Quelleu  zum  intemationalen  Privatrecbt.     1908-. 

4.  AUTHORITIES   IN  ITALIAN. 

BuzzATi,   Trattato   di   diritto   interuaziouale  privato   secondo  le  convenzioni 

dell'Aja.     Vol.  I.  Introduzione.    II  matrimonio.    1908. 
Catellani,  II  diritto  internazionale  privato  ei  snoi  receuti  progressi.  (2d  Ed.) 

Vol.  I.     1895. 
Cavaglieei,  Diritto  internazionale  privato.     1904. 
CoNTuzzi,  Diritto  internazionale  privato.     1880. 
Id.,  U  diritto  ereditario  internazionale.     1908. 
Fiore.  Diritto  internazionale  privato.     (3d  Ed.)  4  vols.  1888-1901. 
FusiNATO,  Introduzione  a  un  corso  di  diritto  internazionale  pubblico  e  privato. 

Part  II.     1885. 
La  Loggia,  Le  esecuzioue  delle  sentenze  straniere.     1902. 
LoMONAco,  Trattato  di  diritto  civile  internazionale.     1874. 
Pierantoni,    U   diritto  civile  e  la  procedura   internazionale  codificati   nelle 

convenzioni  dell'Aja.     1906. 
Rossi,  Studi  di  diritto  internazionale  privato  in  relazione  alia  legge  italiana. 

1880. 


TABLE   OF    CASES. 

[cases  cited  in  footnotes  are  indicated  by  italics,    where  small  capitals 

ARE   used,   the   case   IS   REFERRED   TO   IN   THE   TEXT.] 


Pago 

Aht  V.  American  Trust  &  Saviiujs 

Bank    344 

Adams  v.  Fitchburg  R.  Co 36 

Akers  v.   Demond 379 

Alabama   Great   Southern  R,   Co. 

V.    Carroll 483 

Allen,  In  re 201 

Amsinck  v.  Rogers 427 

Andrews  v.  Andrews 541 

Andrews  v.  Pond 382 

Anonymous    707 

Arbuckle  v.  Reaume 375 

Arnold  v.  Potter 34,  387 

Arp  V.  Allis-Chalmers   Co 68 

Atherton  v.  Atherton 543 

Atwood  V.  Walker 78 

Augusta    Ins.    &   Banking   Co.    v. 

Morton    240 

Ayer  v.  Tilden 75 

Aymar  v.  Sheldon 433 

Baltimore  &  O.  R.  Co.  v.  Cham- 
bers       501 

Bank    Commissioners    v.    Granite 

State  Provident  Ass'n 748 

Bank  of  Augusta  v.  Earle 246 

Barnes  v.   Whitaker 35 

Barnett  v.  Kinney 316 

Bell  v.   Bruen 366 

Benners  v.  Clemens 344 

Bentley  v.    Whittemore 312 

Birtwhistle  v.   Vardill 581 

Blaine  v.  Curtis 31 

Blythe    v.    Ayres 571 

Booth  v.  Clark 723 

Boyle   v.   Zacharie 365 

Bremer  v.  Freeman 19 

Brook  v.  Brook 525 

Brookman  v.  Durkee 606 

Brown  v.  Gates 376 

Brown   v.    Smith 704 

Bullock  v.   Bullock 113 

Burnett     v.     Pennsylvania     R. 

Co 453 

Burnley   v.    Stevenson 106 

Byrne  v.   Crowninshield 64 

Cammell    v.    Sewell 281 

Carnegie  v.  Morrison 355 

Carpenter   v.   Bell 627 


Page 

Carpenter  v.  Strange 105 

Carr  v.  Fracis  Times  &  Co 469 

Chamberlain  v.  Chamberlain.  . .  056 
Chateuay  v.  Brazilian  Submarine 

Tel.    Co 410 

Chicago,   M.   &   St.    P.    R.    Co.   v. 

Keokuk  N.  L.  Packet  Co 729 

Chicago,   R.   I.   &  p.   r.   Co.    v. 

Sturm    335 

Chicago,    R.    I.    &    p.    r.    Co.    v. 

Thompson     69 

Christmas  v.   Russell 142 

Cochran   v.    Ward 257 

Cole  v.  Cunningham 317 

Collier  v.  Rivaz 17 

Commonwealth    v.   Lane 521 

Cooper  V.  Cooper 223 

COPIN  v.  Adamson 121 

Cottiug  v.   De   Sartiges 677 

C-ox    V.    United    States 417 

Cross  v.  Trust  Co 656 

Curtis  V.   Delaware,    L.   &   W.   R. 

Co 350 

Dammert    v.    Osl)orn 665 

Davis  V.  J*]tna  Mut.  Fire  Ins.  Co.  373 

Davis   V.    Mills 71 

Dawes  v.  Head 712 

De  Nicols,  In  re 598 

De  Nicols  v.  Curlier r,m,  598 

Dennick  v.  Central  R.  Co.  of  New 

Jersey    487 

Derrickson    v.    Smith 39 

Despard  v.  Churchill 658 

Doetsch,    In    re 58 

Dolphin  v.  Robins 539 

Dorr    Cattle    Co.    v.    Des    Moines 

Nat.    Bank 81 

Dyke  v.   lirie  R.  Co 480 

Eastern  Township  Bank  v.  II.  S. 

Beebe  &  Co 168 

Eddie    v.    Eddie 590 

Edgerly  v.   Bush 303 

Emanuel  v.  Symon 122 

Embiricos  v.  Anglo-Austrian  Bank  421 

Ennis  v.  Smith 026 

Equitable     Life     Assur.     Soc.     v. 

Clements    SOv; 


LOR.CONF.L. 


(xix) 


XX 


TABLE    OF   CASES. 


Page 

Falke    v.    Terry 089 

Fall    V.    Fall 108 

Fauntleroy    v.    Lum 152 

Fergusson's  Will.   In   re 037 

Fessenden  v.  Taf  t 274 

Feyerick  v.  Hubbard 120 

First  JVat.    Bank  of   New    Haven 

V.    Balcom 198 

First  Nat.  Bank  v.  Shaw 228 

Fisher   v.    Fielding 117 

Fitzgerald,  In  re 617 

Flagg  V.   Baldwin 397 

Frank    v.    Bobbitt 320 

Frierson  v.  Williams 271 

GiBBS  V.  Fkeemokt 77 

GoDAED  V.  Geay 172 

Graham   v.    First    Nat.    Bank    of 

Norfolk   345 

Grand  v.  Livingston 367 

Great  Western  jNIin.  &  Mfg.  Co.  v. 

Harris   722 

Green  v.  Van  Buskirk 292 

Grove,  In  re 566 

Grover  &  Baker  Sewing  Mach.  Co. 

V.   Radcliffe 126 

GUILLANDEB    V.    HOWELL 300 

Haddock    v.    Haddock 549 

Hall,   In  re 510 

Hall   V.    Cordell 205 

Halley,    The 474 

Harrall  v.   Wallis 592 

Harris  v.  Balk 331 

Ilartman  v.  Louisville  &  N.  R.  Co.  59 

Healy    v.    Gorman 348 

Hervey  v.  Rhode  Island  Locomo- 
tive   Works 307 

Hilton  V.   Guyot 4,  156 

Hindman,  Appeal  of 189 

Hoadley  v.  Northern  Transp.  Co.  60 
Home  Land  &  Cattle  Co.   v.   Mc- 

Namara     371 

Hope  V.  Brewer 654 

rioughtaling  v.  Ball 2.56 

Hughes  V.  Pennsylvania  R.  Co...  4.52 

Hunter   v.    Potts 733 

Huntington  v.  Attrill 41 

Ilurd   V.   Elizabeth 726 

Irving  V.  Ford 570 

.Tacobs  v.  Credit  Lyonnais.  .333,  308 

.Tohnson,  In  re 24 

.Tohnson  v.  Powers 684 

Kaufman  v.  Gerson 400 

Kavanaugh  v.  Day 76 

King    V.    Sarria 405 

Knowles  Loom  Works  v.  Vaciikr  313 

Lamar  v.  Mioou 710 

Lawrence  v.  Kitteridge 707 

TvCbel    V.    Tucker 424 


Page 
Lees  V.  Harding,  Whitman  &  Co.  309 

Le  Mesurier  v.  Le  Mestirier 53R 

Leroux    v.    Brown 254 

Levin  v.    Gladstein 147 

Liverpool  &  G.  W.   Steam  Co.  v. 

Phenix    Ins.    Co 459 

Lloyd  v.  Guibert.  .353,  363,  368,  462 
Long  V.   Hess 013 

LOUSTALAN  V.  LOUSTALAN 650 

Lynde  v.  Lynde. 89 

McDaniel  v.    Chicago  &   N.   W. 

R.    Co 308 

MacDonald  v.  Grand  Trunk  R.  Co.  170 

McElmoyle  v.    Cohen 62 

Machado  v.  Fontes 471 

MeSliane  v.  Knox 329 

Male   V.    Roberts 51 

Marshall    v.    Sherman 13 

Marvin  Safe  Co.  v.  Norton 313 

Massie   v.   Watts Ill 

May  v.  First  Nat.   Bank 319 

May  V.   Wannemachcr 322 

Mayor,    Aldermen    &    Citizens    of 

Canterbury  v.   Wyburn 659 

Medway    v.    NEEDiiAit 525.  531 

Merritt  Creamery  Co.  v.  Atchison, 

T.  &  S.  F.  R.  Co 446 

Miller  v.  Miller 578 

Miller  v.  Tiffany 385 

Milliken    v.    Pratt 418 

Mills   v,   Dueyee 97 

Missouri  S.  S.  Co.,  In  re 3.52 

Moen   V.    Moen 587 

Montana  Coal  &  Coke  Co.  v.  Cin- 
cinnati Coal  &  Coke  Co .341 

Moore  v.  Petty 691 

Morgan  v,.   New  Orleans,  M.   & 

T.    R.    Co 454 

Morrisette    v.    Canadian    Pac.    R. 

Co 478 

Moulis  V.  Owen 390 

Moultrie    v.    Hunt 030 

Nichols  &  Shepard  Co.  v.  Marshall  220 
Northern   Pac.   R.   Co.   v.    Bab- 
cock  495 

Ogden    v.    Ogden 514 

Old  Wayne  Mut.  Life  Ass'n  of  In- 
dianapolis   v.    McDonough 139 

Olivier  v.  Townes 285 

Olmsted    v.    Olmsted 583 

Paine  v.  Schenectady  Ins.  Co SO 

Peck  v.  Mayo 77 

Peet  V.   Peet 042 

Pemberton    v.    Hughes 90 

Peninsular  &   Oriental   Co.    v. 

Shand     402 

Penn    V.    Lord    Baltimore Ill 

Pennegar  v.  State 528 

Pennoyer  v.  NefC 99 


TABLE    OF   CASE8. 


XXI 


Page 
People      v.      State      Provident 

Ass'n     749 

Petersen  v.  Chemical  Bank 608 

Phillips  v.  Eyre 472 

Pittsbursh,  C,  C.  &  St.  L.  R.  Co. 

V.    Sheppard 449 

Poison    V.    Stewart 276 

Powell  V.  Great  Northeni  R.  Co. .  .  491 

Prettyman  v.  Conaicay 192 

Price,  In  re 672 

Pritchard    v.    Norton 361 

Putnam  v.  Putnam 533 

Queensland  Mercantile  &  Agency 
Co.,   In   re 324 

Ramsey   v.    Ramsey 711 

Reed's   Will,    In    re 192 

Relfe  v.  Rundle 724 

Reynolds   v.    Stockton 749 

Richardson   v.    Rowland ■  378 

Robinson  v.  Bland 353,  363 

Robinson  v.  Queen 54 

Ross    V.    Ross 218 

Rouqnette  v.  Overmann 439 

ROUSILLON   V.    ROUSILLON 120 

Ruhe    V.    Buck 53 

St.   Clair  v.   Cox 132 

St.   Nicholas  Bank  of  New  York 

V.  State  Nat.  Bank 413 

Saul  V.  His  Creditors 602 

Saunders  v.  American  Exp.  Co...     56 

SCHIBSBY   V.    Westenholz 125 

Schmidt    v.    Perkins 288 

Scotland,  The .502 

Scudder  v.   Union   Nat.   Bank   of 

Chicago     262 

Security  Trust  Co.  v.  Dodd,  Mead 

&    Co 741 

Sell  V.   Miller 240 

Sew  ALL   V .    WiLMER 679 

Shannon  v.   Georgia   State  Build- 
ing   &   Loan    Ass'n 390 

Shapard   v.    Hynes 301 

Shaw   v.    Gould 539 

Shelby  v.   Guy 66 


Page 

Sherman    v.    Gassett 34 

Sidar  Gurdyal  Singh  v.  Rajah 

OF  Faridkote 125 

Slater  v.  Mexican  Nat.  R.  Co 493 

Smith    V.    McAtee 610 

Sortwell  V.  Hughes 395 

Sottomayor  v.  De  Barros 222 

Southern  Pac.  Co.  v.  Dusablon...  497 

Springs  v.  Southbound  R.  Co 343 

Staigg  V.   Atkinson 639 

State    v.    Bell 530 

State    v.     Kennedy 535 

State  v.  Ross 535 

Steers,  Succession  of 201 

Tenant  v.  Tenant  .• 415 

Thompson  v.  Taylor 223 

Thompson  v.  Whitman 95 

Thomson  v.  Kyle 243 

Town  of  Watertown  v.  Greaves.  .  210 
Twcedie  Trading  Co.  v.  James  P. 
McDonald  Co 348 

Udny  V.   Udny 194 

United  States  v.  Crosby 269 

United  States  v.  Fox 628 

Vaugban   v.   Northup 683 

Wabash  R.  Co.  v.  Hassett 15 

Waite,  Matter  of  Accounting  of.  .  736 

Warrington  v.  Ball 144 

Wayman    v.   Southard 363 

Westerman  v.  Schwab 647 

Western  Union  Tel.  Co.  v.  Lacer. .  456 

White  V.  Tennant 184 

Wilkins  v.  Ellett 695 

Williams  v.  Colonial  Bank 322 

Winans   v.   Attorney   General ....  176 
Wisconsin  v.  Pelican  Ins.  Co. . 

44,  154 

Woodruff    V.    Hill 426 

WoodtDard    v.    Brooks 321 

Woodward  v.  Woodward 231 

Wooley    V.    Lyon 438 

Worcester  Bank  v.  Wells 269 

Young  John  Allen,  In  re 201 


CASES  ON  THE  CONFLICT 
OF  LAWS. 


PART  L 

GENERAL  PROVISIONS. 


CHAPTEH  I. 

NATURE  OF  THE  SUBJECT. 


"Whenever  a  case  containing  any  foreign  element  calls  for  decision, 
the  judge  before  whom  it  is  tried  must,  either  expressly  or  tacitly,  find 
an  answer  to  at  least  two  preliminary  questions : 

"First  question :  Is  the  case  before  him  one  which  any  English 
court  has,  according  to  the  law  of  England,  a  right  to  determine? 
*     *     *     The  first  question  is  a  question  of  jurisdiction  (forum). 

"Second  question:  What  (assuming  the  question  of  jurisdiction  to 
be  answered  affirmatively)  is  the  body  of  law  with  reference  to  which 
the  rights  of  the  parties  are  according  to  the  principles  of  the  law  of 
England  to  be  determined?     *     *     * 

"This  second  question  is  an  inquiry  not  as  to  jurisdiction,  but  as  to 
the  choice  of  law  (lex).     *     *     * 

"The  two  foregoing  questions  always  require  an  answer  whenever 
a  case  contains  any  foreign  element.  It  is  possible  that  the  judge  may 
be  called  upon  to  answer  a  third  question,  which,  however,  arises 
only  where  one  of  the  parties  "bases  his  claim  or  detence  upon  the 
decision  of  a  foreign  court,  or,  in  technical  language,  upon  a  foreign 
judgment. 

"The  question  which  then  arises  and  forms  the  third  possible  pre- 
liminary inquiry  may  be  thus  stated:  Is  the  case  one  with  which, 
according  to  the  principles  upheld  by  English  courts,  the  foreign 
court  delivering  the  judgment,  had  a  right  to  deal? 

"This  again  is  a  question  of  jurisdiction.     *     *     * 

"Each  of  these  inquiries,  be  it  noted,  must  be  answered  by  any  judge, 
English  or  foreign,  in  accordance  with  definite  principles,  and,  by  an 

LOR.CONF.L.— 1 


2  GENERAL  PROVISIONS.  (Part  1 

English  judge,  sitting  in  an  English  court,  in  accordance  with  prin- 
ciples or  rules  to  be  found  in  the  law  of  England.  These  rules  make 
up  that  department  of  English  law  that  deals  with  the  Conflict  of 
Laws  and  may  be  provisionally  described  as  principles  of  the  law  of 
England  governing  the  extra-territorial  operation  of  law  or  recogni- 
tion of  rights." 

Dicey,  Conflict  of  Eaws,  pp.  2,  3.^ 


EXTRACTS  FROM  SAVIGNY'S  CONFLICT  OF  LAWS  (Guth- 
rie's Translation,  2d  Ed.,  Revised)  68-71,  76-77:  "Many  have  at- 
tempted to  determine  these  questions  by  the  principle  of  independent 
sovereignty  alone,  laying  down  the  two  following  postulates:  (1) 
Every  state  is  entitled  to  demand  that  its  own  laws  only  shall  be  recog- 
nized within  its  bounds.  (2)  No  state  can  require  the  recognition  of 
its  law  beyond  its  bounds. 

"I  will  not  only  admit  the  truth  of  these  propositions,  but  even  allow 
their  extension  to  the  utmost  conceivable  limits ;  yet  I  believe  that  they 
afford  little  help  in  the  solution  of  our  problem. 

"To  carry  out  the  principle  of  the  independent  sovereignty  of  the 
state  to  the  utmost  possible  extent  with  regard  to  aliens  would  lead 
to  their  complete  exclusion  from  legal  rights.  Such  a  view  is  not 
strange  to  the  international  law  of  the  Romans;  and  even  where  it 
was  not  enforced  by  them  against  foreign  countries,  a  great  distinction 
as  to  the  capacity  for  rights  was  always  maintained  between  Romans 
and  foreigners.  Modern  law,  on  the  contrary,  has  gradually  tended 
towards  the  recognition  of  complete  legal  equality  between  natives  and 
foreigners. 

"But  this  legal  equality  of  persons  does  not  at  all  determine  the 
question  of  collision  between  native  and  foreign  laws.  In  the  first 
place  we  must  admit  that,  if  the  domestic  laws  give  directions  for 
the  treatment  of  cases  of  conflict,  these  must  be  applied  absolutely  by 
the  judges  of  our  state.  Nowhere,  however,  do  such  laws  exist  in 
any  degree  cf  completeness;  m  particular,  tiOt  in  the  stares  where 
the  German  common  law  prevails. 

"The  strict  right  of  sovereigTity  might  certainly,  among  other  things, 
go  so  far  as  to  require  all  judges  of  the  land  to  decide  the  cases  that 
come  before  them  solely  according  to  the  national  law,  regardless  of 

1  In  a  country  like  France,  where,  in  the  absence  of  treaty,  the  enjoy- 
ment of  strictly  civil  rights  is  extended  to  those  foreigners  only  who.  with 
the  permission  of  the  French  government,  have  acquired  an  authorized  dom- 
icile (see  articles  11,  13,  Civ.  Code),  the  "Rights  of  Foreigners"  form  an  ad- 
ditional and  very  important  part  of  the  Conflict  of  Laws.  See  AndrS 
Weiss,  Traite  de  droit  international  prive,  vol.  II,  "Le  Droit  de  I'lStranger." 

For  a  fuller  discussion  of  the  nature  of  the  subject,  consult  Dicey,  Con- 
flict of  Daws,  1-16,  and  A-  Pillet.  Principes  de  droit  international  prive, 
Paris,  lOa'J. 


Ch.  1)  NATURE   OF  THE   SUBJECT.  3 

the  perhaps  different  rules  of  some  foreign  law  with  whose  territory 
the  case  in  question  may  have  come  in  contact.  Such  a  rule,  however, 
is  not  to  be  found  in  the  legislation  of  any  known  state;  and  its  ab- 
sence is  to  be  accounted  for  by  the  following  consideration : 

"The  more  multifarious  and  active  the  intercourse  between  differ- 
ent nations,  the  more  will  men  be  persuaded  that  it  is  not  expedient 
to  adhere  to  such  a  stringent  rule,  but  rather  to  substitute  for  it  the 
opposite  principle.  This  has  resulted  from  that  reciprocity  in  dealing 
with  cases  which  is  so  desirable,  and  the  consequent  equality  in  judg- 
ing between  natives  and  foreigners,  which,  on  the  whole,  is  dictated 
by  the  common  interest  of  nations  ^nd  of  individuals.  For  it  is  the 
necessary  consequence  of  this  equality,  in  its  full  development,  not 
only  that  in  each  particular  state  the  foreigner  is  not  postponed  to  the 
native  (in  which  equality  in  the  treatment  of  persons  consists),  but 
also  that,  in  cases  of  conflict  of  laws,  the  same  legal  relations  (cases) 
have  to  expect  the  same  decision,  whether  the  judgment  be  pronounced 
in  this  state  or  in  that. 

"The  standpoint  to  which  this  consideration  leads  us  is  that  of  an 
international  common  law  of  nations  having  intercourse  with  one 
another ;  and  this  view  has  in  the  course  of  time  always  obtained  wider 
recognition,  under  the  influence  of  a  common  Christian  morality,  and 
of  the  real  advantage  which  results  from  it  to  all  concerned. 

"In  this  way  we  come  to  apply  to  the  conflict  of  territorial  laws 
of  independent  states  substantially  the  same  principles  which  govern 
the  collision  of  particular  laws  in  the  same  state;  and  this  co-ordina- 
tion is  preserved  throughout  the  following  inquiry. 

"In  regard  to  both  kinds  of  collision,  then,  the  question  may  be 
stated  thus: 

"To  ascertain  for  every  legal  relation  (case)  that  law  to  which, 
in  its  proper  nature,  it  belongs  or  is  subject. 

"This  equalization,  as  contrasted  with  the  strict  law  above  mention- 
ed, may  be  designated  a  friendly  concession  among  sovereign  states ; 
that  is,  an  admission  of  statutes  originally  foreign  among  the  sources 
from  which  native  courts  have  to  seek  for  their  decision  as  to  many 
cases  (legal  relations). 

"Only  this  suft'erance  must  not  be  regarded  as  the  result  of  mere 
generosity  or  arbitrary  will,  which  would  im.ply  that  it  was  also  un- 
certain and  temporary.  We  must  rather  recognize  in  it  a  proper  and 
progressive  development  of  law,  keeping  pace  with  the  treatment  of 
cases  of  conflict  between  the  particular  laws  of  the  same  state.    *    *    * 

"But  this  principle  must  be  limited  with  respect  to  many  kinds  of 
laws,  whose  peculiar  nature  does  not  admit  of  so  free  an  application 
of  the  community  of  law  obtaining  between  different  states.  Where 
there  are  such  statutes,  the  judge  will  have  to  apply  the  domestic 
law  more  exclusively  than  that  principle  allows,  and  must,  on  the  other 
hand,  leave  the  foreign  law  unapplied,  even  where  that  principle  would 
justify  its  application.    Thence  arises  an  important  class  of  exceptions. 


4  GENERAL  PROVISIONS.  (Part  1 

to  determine  the  limits  of  which  is  perhaps  the  most  difficult  part  of 
this  subject.  The  often  unconscious  respect  paid  by  writers  to  these 
exceptions  has  not  a  little  contributed  to  hinder  the  unanimous  recog- 
nition of  the  rules  which  are  limited  by  them.  If  it  were  possible 
satisfactorily  to  establish  and  ascertain  the  extent  of  these  exceptions, 
many  disputes  as  to  the  rules  themselves  would  be  prevented  or 
brought  to  an  end.  I  will  endeavor  to  reduce  such  exceptions  to  twd 
classes : 

"A.  Laws  of  a  strictly  positive,  imperative  nature,  which  are  con- 
sequently inconsistent  with  that  freedom  of  application  which  pays  no 
regard  to  the  limits  of  particular  states. 

"B.  Legal  institutions  of  a  foreign  state,  of  which  the  existence  is 
not  at  all  recognized  in  ours,  and  which,  therefore,  have  no  claim  to 
the  protection  of  our  courts." 


HILTON  V.  GUYOT  (1895)  159  U.  S.  113,  1G3,  16  Sup.  Ct.  139,  40 
L.  Ed.  95,  Gray,  J. :  "International  law,  in  its  widest  and  most  com- 
prehensive sense — including  not  only  questions  of  right  between  na- 
tions, governed  by  what  has  been  appropriately  called  the  'law  of  na- 
tions,' but  also  questions  arising  under  what  is  usually  called  'private 
international  law,'  or  the  'conflict  of  laws,'  and  concerning  the  rights 
of  persons  within  the  territory  and  dominion  of  one  nation,  by  reason 
of  acts,  private  or  public,  done  within  the  dominions  of  another  nation 
— is  part  of  our  law,  and  must  be  ascertained  and  administered  by  the 
courts  of  justice  as  often  as  such  questions  are  presented  in  litigation 
between  man  and  man,  duly  submitted  to  their  determination. 

"The  most  certain  guide,  no  doubt,  for  the  decision  of  such  ques- 
tions is  a  treaty  or  a  statute  of  this  country.  But  when,  as  is  the 
case  here,  there  is  no  written  law  upon  the  subject,  the  duty  still  rests 
upon  the  judicial  tribunals  of  ascertaining  and  declaring  what  the  law 
is,  whenever  it  becomes  necessary  to  do  so,  in  order  to  determine  the 
rights  of  parties  to  suits  regularly  brought  before  them.  In  doing  this, 
the  courts  must  obtain  such  aid  as  they  can  from  judicial  decisions, 
from  the  works  of  jurists  and  commentators,  and  from  the  acts  and 
usages  of  civilized  nations.  Fremont  v.  U.  S.,  17  How.  542,  557,  15 
L.  Ed.  241 ;  The  Scotia,  14  Wall.  170,  188,  20  L.  Ed.  822 ;  Respublica 
V.  De  Longchamps,  1  Dall.  (Pa.)  Ill,  116,  1  L.  Ed.  59;  Moultrie  v. 
Plunt,  23  N.  Y.  394,  396. 

"No  law  has  any  effect,  of  its  own  force,  beyond  the  limits  of  the 
sovereignty  from  which  its  authority  is  derived.  The  extent  to  which 
the  law  of  one  nation,  as  put  in  force  within  its  territory,  whether  by 
executive  order,  by  legislative  act,  or  by  judicial  decree,  shall  be  al- 
lowed to  operate  within  the  dominion  of  another  nation,  depends 
upon  what  our  greatest  jurists  have  been  content  to  call  'the  comity 


Ch.  1)  NATURE  OF  THE   SUBJECT.  5 

of  nations.*  Although  the  phrase  has  been  often  criticised,  no  satis- 
factory substitute  has  been  suggested. 

"  'Comity,'  in  the  legal  sense,  is  neither  a  matter  of  absolute  obliga- 
tion, on  the  one  hand,  nor  of  mere  courtesy  and  good  will,  upon  the 
other.  But  it  is  the  recognition  which  one  nation  allows  within  its 
territory  to  the  legislative,  executive,  or  judicial  acts  of  another  nation, 
having  due  regard  both  to  international  duty  and  convenience,  and  to 
the  rights  of  its  own  citizens,  or  of  other  persons  who  are  under  the 
protection  of  its  laws. 

"Mr.  Justice  Story,  in  his  Commentaries  on  the  Conflict  of  Laws, 
treating  of  the  question  in  what  department  of  the  government  of 
any  state,  in  the  absence  of  any  clear  declaration  of  the  sovereign 
will,  resides  the  authority  to  determine  how  far  the  laws  of  a  foreign 
state  shall  have  effect,  and  observing  that  this  differs  in  different  states, 
according  to  the  organization  of  the  departments  of  the  government 
of  each,  says :  'In  England  and  America  the  courts  of  justice  have 
hitherto  exercised  the  same  authority  in  the  most  ample  manner,  and 
the  Legislatures  have  in  no  instance  (it  is  believed)  in  either  country 
interfered  to  provide  any  positive  regulations.  The  common  law  of 
both  countries  has  been  expanded  to  meet  the  exigencies  of  the  times 
as  they  have  arisen,  and,  so  far  as  the  practice  of  nations,  or  the  "jus 
gentium  privatum,'  has  been  supposed  to  furnish  any  general  princi- 
ple, it  has  been  followed  out.'     Story,  Confl.  Laws,  §§  23,  24. 

"Afterwards,  speaking  of  the  difficulty  of  applying  the  positive  rules 
laid  down  by  the  Continental  jurists,  he  says  that  'there  is,  indeed, 
great  truth'  in  these  remarks  of  Mr.  Justice  Porter,  speaking  for  the 
Supreme  Court  of  Louisiana :  'They  have  attempted  to  go  too  far,  to 
define  and  fix  that  which  cannot,  in  the  nature  of  things,  be  defined 
and  fixed.  They  seem  to  have  forgotten  that  they  wrote  on  a  question 
which  touched  the  comity  of  nations,  and  that  that  comity  is,  and  ever 
must  be,  uncertain ;  that  it  must  necessarily  depend  on  a  variety  of 
circumstances  which  cannot  be  reduced  to  any  certain  rule;  that  no 
nation  will  suffer  the  laws  of  another  to  interfere  with  her  own  to 
the  injury  of  her  citizens;  that  whether  they  do  or  not  must  depend 
on  the  condition  of  the  country  in  which  the  foreign  law  is  sought 
to  be  enforced,  the  particular  nature  of  her  legislation,  her  policy,  and 
the  character  of  her  institutions ;  that  in  the  conflict  of  laws  it  must 
often  be  a  matter  of  doubt  which  should  prevail ;  and  that,  whenever 
a  doubt  does  exist,  the  court  which  decides  will  prefer  the  laws  of 
its  own  country  to  that  of  the  stranger.'  Story,  Confl.  Laws,  §  28 ; 
Saul  V.  His  Creditors,  5  Mart.  (N.  S.)  569.  596,  16  Am.  Dec.  212. 

"Again,  Mr.  Justice  Story  says :  'It  has  been  thought  by  some  jurists 
that  the  term  "comity"  is  not  sufficiently  expressive  of  the  obligation 
of  nations  to  give  effect  to  foreign  laws  when  they  are  not  prejudicial 
to  their  own  rights  and  interests.  And  it  has  been  suggested  that  the 
doctrine  rests  on  a  deeper  foundation ;  that  it  is  not  so  much  a  mat- 
ter of  comity  or  courtesy,  as  a  matter  of  paramount  moral  duty.     Now, 


6  GENERAL   PROVISIONS.  (Part  1 

assuming  that  such  a  moral  duty  does  exist,  it  is  clearly  one  of  im- 
perfect obligation,  like  that  of  beneficence,  humanity,  and  charity. 
Every  nation  must  be  the  final  judge  for  itself,  not  only  of  the  nature 
and  extent  of  the  duty,  but  of  the  occasions  on  which  its  exercise 
may  be  justly  demanded.'  And,  after  further  discussion  of  the  mat- 
ter, he  concludes:  'There  is,  then,  not  only  no  impropriety  in  the 
use  of  the  phrase  "comity  of  nations,"  but  it  is  the  most  appropriate 
phrase  to  express  the  true  foundation  and  extent  of  the  obligation  of 
the  laws  of  one  nation  within  the  territories  of  another.'  Story,  Confl. 
Laws,  §§  33-38. 

"Chief  Justice  Taney,  likewise,  speaking  for  this  court,  while  Mr. 
Justice  Story  was  a  member  of  it,  and  largely  adopting  his  words, 
said:  'It  is  needless  to  enumerate  here  the  instances  in  which,  by 
the  general  practice  of  civilized  countries,  the  laws  of  the  one  will, 
by  the  comity  of  nations,  be  recognized  and  executed  in  another,  where 
the  rights  of  individuals  are  concerned.'  'The  comity  thus  extended  to 
other  nations  is  no  impeachment  of  sovereignty.  It  is  the  voluntary 
act  of  the  nation  by  which  it  is  offered,  and  is  inadmissible  when  con- 
trary to  its  policy,  or  prejudicial  to  its  interests.  But  it  contributes 
so  largely  to  promote  justice  between  individuals,  and  to  produce  a 
friendly  intercourse  between  the  sovereignties  to  which  they  belong, 
that  courts  of  justice  have  continually  acted  upon  it  as  a  part  of  the 
voluntary  law  of  nations.'  'It  is  not  the  comity  of  the  courts,  but 
the  comity  of  the  nation,  which  is  administered  and  ascertained  in 
the  same  way,  and  guided  by  the  same  reasoning,  by  which  all  other 
principles  of  municipal  law  are  ascertained  and  guided.'  Bank  of 
Augusta  V.  Earle,  13  Pet.  519,  589.  10  L.  Ed.  274;  Story,  Confl.  Laws, 
§  38. 

"Mr.  Wheaton  says :  'All  the  effect  which  foreign  laws  can  have  in 
the  territory  of  a  state  depends  absolutely  on  the  express  or  tacit  con- 
sent of  that  state.'  'The  express  consent  of  a  state  to  the  applica- 
tion of  foreign  laws  within  its  territory  is  given  by  acts  passed  by  its 
legislative  authority,  or  by  treaties  concluded  with  other  states.  Its 
tacit  consent  is  manifested  by  the  decisions  of  its  judicial  and  adminis- 
trative authorities,  as  well  as  by  the  writings  of  its  publicists.  There 
is  no  obligation  recognized  by  legislators,  public  authorities,  and  pub- 
licists to  regard  foreign  laws ;  but  their  application  is  admitted  only 
from  considerations  of  utility  and  the  mutual  convenience  of  states — 
"ex  comitate,  ob  reciprocam  utilitatem." '  Wheat.  Int.  Law  (8th  Ed.) 
§§  78.  79."  2 

-'The  Dutch  jurist,  J.  Voot  (1047-1714),  is  the  author  of  this  doctrine  (De 
Staiutis,  §  1). 


Ch.  1)  NATURE   OF  THE   SUBJECT.  7 

EXTRACTS  FROM  A.  FILLET,  ESSAI  D'  UN  SYSTfeME 
GENERAL  DE  SOLUTIONS  DES  CONFLITS  DES  LOIS,  21 
Clunet,  419-427,  433,  727 :  "Each  time  a  question  is  asked  concern- 
ing the  international  nature  of  a  law,  a  doubt  is  possible  onl_v  be- 
tween two  views.  This  law  may  be  either  territorial  or  extra-terri- 
toriaL  If  it  is  territorial,  everybody  in  a  country  is  amenable  ^to  its 
provisions,  without  it  being-  permissible  to  distinguish  between  sub- 
jects and  foreigners,  between  persons  domiciled  or  not  domiciled,  but, 
on  the  other  hand,  as  soon  as  a  person  leaves  his  country,  he  ceases 
to  owe  it  obedience.  If  it  is  extra-territorial,  the  contrary  effects  are 
produced.  Once  deemed  applicable  to  a  person  (by  reason  of  his 
nationality  or  domicile  according  to  the  view  taken),  the  law  follows 
him  everywhere,  so  that  its  application  is  not  determined  by  the  place 
where  such  application  is  made,  but  by  the  person  in  question.  Ter- 
ritoriality and  extra-territoriality,  these  are  the  two  poles  between 
which  oscillates  the  mass  of  undecided  opinion's — opinions  most  often 
devoid  of  definite  principles  capable  in  a  given  case  of  guiding  the 
inquirer  without  hesitancy  to  one  or  the  other. 

"Each  of  these  extremes  has  had  its  hour  of  celebrity  and  its  hope 
of  universal  sway.  For  four  centuries,  the  principle  'all  customs  are 
real'  has  been  accepted  as  an  article  of  faith,  to  depart  from  which 
would  have  been  regarded  as  impious.  Reality  was  the  rule.  It  was 
by  no  means  a  rule  without  exceptions,  and  these  exceptions  varied 
according  to  the  opinion  or  the  phantasy  of  each  person ;  but  it  was 
the  rule.  It  was  already  the  rule  for  Bartolus,  and  it  was  still  the 
rule  for  the  great  magistrate  whose  work  closes  the  ancient  history  of 
our  science  and  permits  us  to  see  dimly  the  aurora  of  new  times.  It 
was  the  rule  for  Dumoulin.  It  was  also  that  of  Argentre.  All  the 
jurists,  Italian,  French,  Dutch,  English  and  German,  stood  equally 
firm  on  this  principle.     Children  even  did  not  doubt  it. 

"This  principle  was  just,  as  long  as  the  legal  communities  lived  in  a 
state  of  complete  isolation ;  from  the  day  that  extra-territorial  rela- 
tions (international  or  interprovincial)  arose,  it  could  not  be  admitted 
that  a  person  leaving  his  country  broke  at  once  all  the  legal  ties 
which  attached  him  to  it ;  from  that  day  on  there  began  the  old 
struggle  between  the  traditional  principle,  still  intact  to  all  appearances, 
and  the  reality  of  things,  an  obtrusive  reality,  disavowed  by  principles 
regarded  as  the  most  certain  in  the  law,  but  existing  nevertheless 
and  taking  little  by  little  its  place  by  reason  of  its  obviousness  and 
necessity.  The  whole  history  of  the  long  war  between  reality  and 
personality  had  its  origin  in  the  contradiction  which  is  bound  to  ap- 
pear whenever  a  principle  of  law  subsists  longer  than  the  social  con- 
ditions out  of  which  it  grew  and  the  exterior  phenomena  which  it 
was  to  govern. 

"To  most  of  us  the  statutory  theory  appears  as  only  a  distant  recol- 
lection, but  in  its  place  quite  a  contrary  conception  has  arisen  which. 


8  GENERAL   PROVISIONS.  (Part  1 

thanks  to  the  just  authority  of  its  inventors,  thanks  also  to  the  con- 
sideration it  attached  to  the  human  person,  won  immediately  strong 
support. 

"The  school  of  Mancini  proclaims  that  personality  is  the  rule  and 
reality  the  exception.  The  formula  is  seductive,  indeed,  and  the 
equitable  results  to  which  it  generally  leads  has  given  to  it  a  strong- 
felt  influence  upon  the  legislation  enacted  since  the  day  it  was  an- 
nounced. The  misfortune  is  that  one  must  not  try  to  justify  it.  One 
would  not  succeed,  and  it  was  only  at  the  price  of  inexcusable  con- 
fusion that  its  author  himself  was  able  to  give  to  it  for  a  time  the 
appearance  of  reason. 

'Tn  the  meantime  a  great  number  of  different  systems  had  been 
proposed,  principally  in  Germany,  a  country  the  fecundity  of  which 
in  this  respect  has  been  marvelous.  The  ones  best  known  are  those  of 
Titius,  Eichhorn,  Boschen,  Hauss,  Schaffner,  Wachter,  and  Savigny. 
Although  they  borrowed  their  determining  principles  from  very  dif- 
ferent sources,  of  which  we  shall  not  try  to  give  here  even  an  idea, 
they  possessed  this  common  characteristic  that  they  did  not  regard  law 
as  being  either  territorial  or  extra-territorial  by  nature.  They  refrain 
from  laying  down  a  single  principle  which  they  know  cannot  be  up- 
held, and  agree  in  deciding  that,  according  to  circumstances,  laws  are 
now  territorial,  now  extra-territorial,  depending,  according  to  some, 
upon  the  intent  of  the  legislator,  according  to  others  upon  the  intent 
of  the  parties,  or  even  upon  the  place  where  the  relationship  arose, 
or,  in  short,  upon  such  other  particular  circumstances  as  the  author 
deemed  wise  to  adopt  as  the  pivot  of  his  theory  and  as  the  criterion 
of  his  decisions. 

"These  ideas  are  familiar  to  every  one  who  has  studied  Private 
International  Law  and  it  is  enough  for  us  to  have  recalled  them  here 
by  means  of  the  lightest  sketch.  If  we  should  try  to  give  a  resume 
in  as  general  and  abstract  a  formula  as  possible  of  the  work  accomp- 
lished by  the  theoretical  writers  on  Private  International  Law,  we 
should  say  that,  among  the  jurists,  some  have  maintained  the  principle 
of  the  territoriality  of  laws,  others  have  proclaimed  their  person- 
ality as  a  general  principle,  others,  finally,  and  a  very  large  number, 
think  that  by  nature  laws  are  necessarily  neither  real  nor  personal, 
being  susceptible  of  assuming  the  one  or  the  other  of  these  character- 
istics, according  to  circumstances. 

"In  order  to  complete  the  cycle  of  possible  combinations,  only  one 
formula  is  lacking,  namely,  that  laws  are  by  their  nature  at  once 
territorial  and  extra-territorial.  It  is  precisely  this  formula  which 
we  take  as  the  basis  of  our  theory.  It  is  the  one  which  we  submit 
and  which  we  shall  immediately  try  to  justify.     *     *     * 

"The  law  is  essentially  an  instrument  of  authority,  indispensable  to 
the  social  power  in  its  relation  to  those  composing  the  community 
whose  destiny  it  directs.  As  such  the  law  must  and  always  does  em- 
brace certain  characteristics  indispensable  to  its  effect,  certain  qualities 


Ch.  1)  NATURE   OF   THE    SUBJECT.  9 

without  which  it  would  no  longer  have  any  reason  to  exist.  It  belongs 
to  public  law  to  unfold  the  complete  sum  of  such  characteristics.  We 
shall  distinguish  here  only  two,  which  alone  seem  to  us  important 
from  an  international  point  of  view,  but  the  importance  of  which  in 
this  connection  is  very  great — the  continuity  and  generality  of  its 
application.     *     *     * 

"When  we  say  that  the  law  is  naturally  continuous,  we  mean  that 
its  authority  should  be  exercised  without  interruption.  From  the 
day  it  is  enacted  to  the  day  it  is  abrogated  a  law  must  be  followed 
and  obeyed  without  interruption.  It  constitutes  in  its  very  essence  an 
act  of  authority,  command  or  prohibition  imposed  upon  the  will  of 
the  persons  to  whom  it  applies  and  who  must  submit  to  its  sway.  If 
the  law  operated  only  at  intervals,  if  its  authority  had  to  suffer 
periods  of  enervation  and  paralysis,  it  would  be  better  not  to  burden 
the  statute  books  with  a  useless  text.  What  would  a  law  be  which 
one  must  obey  one  day  and  can  violate  the  next  ?  A  veritable  phantom 
of  command,  it  would  but  reveal  the  radical  powerlessness  of  the 
legislator,  careless  enough  of  his  authority  to  permit  such  an  abuse 
The  authority  of  a  law  must  therefore  be  continuous.  The  fact  is  so 
evident  that  we  deem  it  useless  to  insist  upon  it  longer. 

"It  is  not  less  necessary  that  each  law  be  general  in  its  subjective 
application ;  that  is,  with  respect  to  the  persons  comprised  within  the 
social  group  for  which  it  has  been  miade.  Let  us  make  this  point 
clearer.  We  do  not  mean  to  say,  of  course,  that  all  laws  are  neces- 
sarily made  for  all  citizens  without  exception.  It  is  clear  that  the 
laws  regarding  the  condition  of  minors  have  nothing  to  do  with  those 
regarding  persons  of  age  and  that  laws  regulating  the  status  of  mar- 
ried women  do  not  apply  to  either  girls  or  widows.  We  mean  that 
when  a  law  is  made  for  a  certain  category  of  persons,  it  must  apply 
to  all  who,  being  embraced  within  such  category,  are  found  within 
the  territory  of  the  legislator  who  has  enacted  it.  In  this  consists 
what  we  may  call  the  subjective  generality  of  a  law,  and  the  reason 
for  this  characteristic  is  this.  The  benefit  of  the  law  consists  not  only 
in  that  it  adapts  to  the  interests  of  each  one  the  rule  deemed  bv  the 
legislator  best  calculated  to  further  them,  but  also  in  that  it  establishes 
among  the  members  of  the  community  a  certain  order,  an  order  pre- 
cious from  a  double  point  of  view:  First,  for  its  own  sake  because 
it  simplifies  the  relations  between  citizens ;  then  because  it  permits 
the  legislator  to  insure  a  complete  respect  for  those  ideas  of  social 
morality  deemed  necessary  by  him  throughout  the  extent  of  the  do- 
main subject  to  his  authority.  Here  again  it  is  obvious  that  no  order 
can  exist  except  upon  the  condition  that  one  and  the  same  law  is 
binding  upon  all  persons  present  within  the  territory,  within  the  limits 
of  which  it  is  to  be  established.  History  has  transmitted  to  us  the 
remembrance  of  an  epoch  during  which  each  person  within  the  same 
territory  followed  his  personal  law,  where  one  could  see  converse  to- 
gether, according  to  the  testimony  of  Agobard,  five  persons  subject 


10  GENERAL   PKOVISIONS.  (Part  1 

to  five  different  laws,  and  we  know  the  confusion  which  was  the  re- 
sult of  this  state  of  affairs  and  which  drove  the  following  period  into 
quite  the  opposite  extreme.  Evidently  order  is  necessary  for  each 
state,  and  order  exists  in  the  domain  of  law  only  as  long-  as  law  ap- 
plies without  distinction  to  every  person  within  the  confines  of  the 
state. 

"We  have  argued  so  far  independently  of  an  international  point 
of  view.  Let  us  apply  our  reasoning  now  to  the  situation  created  by 
the  existence  of  an  international  society.  International  relations 
have  this  consequence  that  each  state  has  constantly  within  its  midst 
a  certain  number  of  foreigners;  there  is  a  reciprocal  penetration  of 
one  nation  by  another.  What  is  to  be  the  role  played  by  the  law  in 
the  face  of  such  a  phenomenon? 

''This  point  appears  certain,  namely,  that  the  international  manifesta- 
tions of  individual  activity  should  not  remain  outside  of  the  domain  of 
law  (droit)  and  consequently  outside  of  that  of  the  law  (loi).  It  is 
necessary  that  the  law  (there  is  no  need  of  determining  this  law 
as  yet)  be  applicable  to  them,  direct  them,  comprise  them,  play  with 
respect  to  them  the  same  role  it  is  accustomed  to  play  in  its  purel}) 
national .  relations.  The  more  completely  this  object  is  attained,  the 
more  international  society  will  gain  in  stability,  security,  and  useful- 
ness for  those  forming  part  of  it.  The  ideal  in  this  matter  would  be 
that  the  law  in  this  new  'function  would  preserve  that  fullness  of 
effect  which  it  possesses  in  the  purely  national  order.  We  shall  soon 
see  whether  this  ideal  is  such  that  we  can  ever  hope  to  realize  it  fully. 

"The  aim  should  therefore  be  to  preserve  .for  the  law,  in  its  inter- 
national function,  the  characteristics  it  possesses  in  its  national  func- 
tion, for  we  have  seen  that  upon  the  maintenance  of  these  character- 
istics depends  the  certainty  of  its  effect.  Let  us  study  then  these 
characteristics  from  an  international  point  of  view  and  let  us  see  the 
consequences  which  they  entail  with  respect  to  the  effect  of  the  law 
in  this  domain.  From  an  international  point  of  view,  continuity  im- 
plies necessarily  extra-territoriality ;  subjective  generality  implies  ter- 
ritoriality. This  double  connection  is  easily  seen.  For  a  law  to  be 
truly  continuous,  it  is  necessary  that  it  be  applicable  under  all  circum- 
stances to  the  person  within  the  purview  of  its  provisions,  that  it 
follow  him  abroad  when  he  leaves  the  country,  that  it  govern  the 
interests  he  may  possess  there,  as  well  as  those  he  may  possess  at  home. 
Each  infraction  of  this  rule  would  constitute  a  total  or  partial  gap 
in  the  application  of  law,  and  a  defect  therefore  which  would  compro- 
mise its  effect  always  seriously,  sometimes  irremediably.  Take  the 
common  example  of  a  rule  of  law  concerning  capacity  and  suppose 
that  it  ceases  to  apply  to  a  person  when  he  leaves  the  country,  or  only 
that  it  remains  powerless  with  regard  to  the  property  of  such  a  person 
situated  abroad,  and  it  will  be  perceived  that  in  both  cases  the  rule 
fails  to  attain  its  object  because  it  lacks  continuity  in  its  effect.  The 
legal  regime  to  which  a  person  is  subject  is,  in  the  case  of  interruption, 


Ch.  1)  NATURE    OF   THE    SUBJECT.  11 

replaced  by  a  different  regime  conceived  in  a  different  spirit,  contain- 
ing dispositions  foreign  and  perhaps  contrary  to  those  of  his  own 
country;  dispositions  which  by  reason  of  their  intermittent  appHca- 
tions  will  often  be  little  superior  to  a  total  absence  of  any  legal  regu- 
lation. It  is  clear,  for  example,  that  if,  with  respect  to  the  same 
person,  a  period  of  capacity,  though  it  be  limited,  be  followed  by  a 
period  of  complete  incapacity,  all  the  effects  which  the  legislator  could 
expect  from  the  measure  taken  in  his  behalf  will  be  forever  frustrated 
by  the  lack  of  continuity  in  the  application  of  such  measure.  We 
may  say  that  this  quality,  which  in  municipal  law  is  called  'continuity,' 
is  in  international  law  called  'extra-territoriality.'  The  two  words 
represent  the  same  idea  and  form  part  of  the  nature  of  law  by  virtue 
of  the  same  title. 

"In  the  same  way  subjective  generality  cannot  exist  without  ter- 
ritoriality. We  have  seen  that  generality  is  required  as  a  condition 
for  the  existence  of  order  in  the  private  relations  of  citizens.  Now, 
this  order  can  exist  only  upon  the  condition  that  it  governs  all  the  ele- 
ments scattered  over  the  territory  where  it  is  to  be  established.  We 
are  in  the  habit  of  making  use  of  a  comparison  here  which  we  take 
the  liberty  of  reproducing.  When  in  a  military  parade  a  certain  order 
is  to  be  observed,  the  failure  of  one  man  to  remain  in  the  place  as- 
signed to  him  is  sufficient  to  destroy  that  order.  Order  has  something 
indivisible  about  it.  It  exists  or  it  does  not  exist,  but  it  cannot  exist 
in  part.  The  figure  I  draw  upon  paper  may  be  square  or  not  square, 
but  it  cannot  be  so  in  part.  So  it  is  in  the  juridical  world.  An  order 
which  the  law  aims  to  establish  will  exist  only  if  all  of  the  subjects 
found  within  the  society  which  is  to  benefit  from  it  are  equally  subject 
to  its  dispositions.  No  distinction  is  possible,  all  persons  must  submit 
to  it  without  distinction  whether  foreigners  or  subjects,  all  property 
must  be  subject  to  it  without  regard  to  its  owner,  all  juridical  acts 
comply  therewith,  wherever  the  place  may  be  in  which  they  are  intend- 
ed to  produce  their  effect.  In  a  word,  the  law  must  be  strictly  terri- 
torial. 

"This  long  demonstration  is  now  concluded  and  those  who  have  had 
the  patience  to  follow  us  will  conclude  with  us  that  all  laws  are  by 
their  nature  both  territorial  and  extra-territorial  since  the  generality 
and  continuity  of  application  are  among  their  essential  characteristics. 
This  truth  may  have  a  paradoxical  aspect,  but  it  is  none  the  less  the 
pure  truth. 

"Here  then  is  the  first  result  obtained,  and  it  is  very  important. 
Without  proceeding  further,  the  discovery  we  have  just  made  will 
enable  us  to  understand  a  fact  which  without  it  may  be  difficult  to 
explain,  namely,  that  the  laws  most  obviously  territorial  operate 
sometimes  as  extra-territorial  laws,  and,  conversely,  that  those  whose 
extra-territorial  character  is  least  disputed  do  not  fail,  under  certain 
circumstances,  to  produce  territorial  effects.     *     *     * 

"If  they  ordinarily  present  to  us  only  one  of  these  aspects,  which  is 


12  GENERAL   PROVISIONS.  (Part  1 

always  the  same,  it  results  solely  from  the  necessity  one  is  under  to 
make  some  concessions  in  order  to  arrive  at  a  solution  of  the  conflicts. 
"The  social  aim  to  be  attained  is  the  reason  for  the  existence  of 
the  law.  It  gives  to  it  its  distinctive  character.  It  assigns  to  it  its 
duration.  Is  it  not  logical,  therefore,  to  maintain  that  the  internation- 
al effect  of  law  should  be  determined  by  its  social  aim?  This  is, 
indeed,  the  rule  which  we  propose.  We  know  that  laws  are  by  their 
nature  both  territorial  and  extra-territorial,  that  in  international  com- 
merce they  can  retain  only  the  one  or  the  other  of  these  characteristics, 
and  we  believe  that  in  each  case  the  choice  of  this  characteristic  should 
be  determined  by  a .  consideration  of  the  social  aim  of  the  law.  We 
declare  territorial  all  laws  whose  purpose  would  not  be  attained  if  in 
each  country  they  were  not  applicable  to  foreigners  and  to  subjects 
alike,  extra-territorial  those  whose  purpose  demands  that  they  follow 
everywhere  the  person  falling  within  the  purview  of  its  dispositions. 
In  all  cases,  therefore,  we  shall  consult  the  social  purpose  of  each  law 
submitted  to  our  examination.  This  will  be  for  us  the  only  key  to  the 
question  of  conflicts,  the  formula  from  which  we  shall  seek  an  answer 
to  the  question  whether  a  law  should  be  considered  territorial  ori 
extra-territorial."  ^ 

3  For  a  fuller  development  of  Fillet's  theory,  consult  21  Clunet,  417-435. 
711-754;  22  Clunet.  241-259,  500-517,  929-952;  23  Clunet,  5-30;  also  his 
Frincipeg  de  droit  international  prive,  1908. 

A  summary  of  the  principal  theories  advanced  by  continental  jurists  con- 
cerning the  Conflict  of  Laws  may  be  found  in  v.  Bar,  Theory  and  Fractice 
of  Frivate  International  Law  (Gillespie's  Transl.  2d  Ed.)  11-77 ;  F.  Meili 
(Kuhn's  Transl.)  International  Civil  and  Commercial  Law,  52-100;  and  A. 
Weiss,  Traite  de  droit  international  prive,  vol.  Ill,  7-243.  See,  also,  F. 
Kahn,  Ahhandlungen  aus  dera  internationalen  Privatrecht,  39  Ihering's  Jahr- 
biicher  fiir  die  Dogmatik  des  biirgerlichen  Rechts,  1-112;  40  Id.  1-87;  D. 
.T.  Jitta,  Xe  droit  commun  international  comme  source  du  droit  international 
prive,  4  Darras,  55.3-570. 

The  earliest  theory — the  statute  theory — was  formulated  by  the  early 
Italian  school,  whose  chief  representative  was  Bartolus,  1314-1357.  The  Ital- 
ian was  followed  by  the  French  school,  of  which  Argentrseus  (D'  Argenti'e), 
1519-1.590,  and  Molina^us  (Dumoulin),  1,500-1566,  were  the  leaders,  and  the 
Dutch  school,  to  which,  among  others,  Burgundus,  15S6-1649.  Rodenburg, 
1618-1668,  F.  Voet,  1619-1677,  J.  Voet,  1647-1714,  and  Ulricus  Huber,  1636- 
1694,  belonged. 

Speaking  of  the  influence  of  the  Dutch  jurists  upon  English  and  American 
law,  Meiii  (supra,  83,  84)  says:  "Foreign  law  gradually  found  an  introduc- 
tion through  the  practice  of  the  ecclesiastical  courts  and  writs  of  admiralty, 
a  result  which  was  assisted  by  the  fact  that  many  English  and  Scotch  ju- 
rists completed  their  education  in  Holland.  Another  important  element  was 
the  fact  that  William  III  (16.50-1702)  simultaneously  held  the  positions  of 
king  of  England  and  stadtholder  of  Holland.  The  Dutch  school  exercised  a 
great  influence  in  England,  and.  through  English  authorities,  later  also  in 
America.  As  the  American  author  Story  (section  10)  well  says,  we  have 
no  early  theoretical  discussions  from  England.  We  may  add  that  England 
never  underwent  the  early  continental  Etu'opoan  development  of  the  statu- 
tory conflict  at  all.  With  the  growth  of  the  science  of  International  Pri- 
vate Law,  this  nation  took  the  doctrines  as  they  had  been  developed  by 
the  Dutch  school.  Story,  himself,  was  largely  influenced  by  Ulricus  Huber." 
See,  also,  Westlake,  Priv.  Int.  Law,  8. 

For  an  account  of  the  history  of  the  statute  theory,  see  the  authoritative 
work  of  A.  Lain6,  Introduction  au  droit  international  prive.     See,   also,  F. 


Ch.  1)  NATURE    OF   THE    SUBJECT.  13 

MARSHALL  v.  SHERMAN  (1895)  148  N.  Y.  9,  24,  42  N.  E.  419, 
423,  34  L.  R.  A.  757,  51  Am.  St.  Rep.  654,  O'Brien,  J. :  "It  is  a  princi- 
ple of  universal  application,  recognized  in  all  civilized  states,  that  the 
statutes  of  one  state  have,  ex  proprio  vigore,  no  force  or  effect 
in  another.  The  enforcement  in  our  courts  of  some  positive  law  or 
regulation  of  another  state  depends  upon  our  own  express  or  tacit 
consent.  The  consent  is  given  only  by  virtue  of  the  adoption  of  the 
doctrine  of  comity  as  part  of  our  municipal  law.  That  doctrine  has 
many  limitations  and  qualifications,  and  generally  each  sovereignty  has 
the  right  to  determine  for  itself  its  true  scope  and  extent.  The 
courts  of  this  state  are  open  to  all  suitors  to  enforce  rights  of  action, 
transitory  in  their  nature,  recognized  by  the  common  law,  or  founded 
in  natural  justice,  and  when  no  law  of  the  forum  or  any  principle  of 
public  policy  interferes.  There  is,  however,  a  large  class  of  foreign 
laws  and  statutes  which,  under  the  doctrine  of  comity,  have  no  force 
in  this  jurisdiction.  It  belongs  exclusively  to  each  sovereignty  to  de- 
termine for  itself  whether  it  can  enforce  a  foreign  law  without,  at 
the  same  time,  neglecting  the  duty  that  it  owes  to  its  own  citizens  or 
subjects.  It  has  been  held,  and  is  a  principle  universally  recognized, 
that  the  revenue  laws  of  one  country  have  no  force  in  another.  The 
exemption  laws  and  laws  relating  to  married  women,  as  well  as  the 
local  statute  of  frauds  and  statutes  authorizing  distress  and  sale  for 
nonpayment  of  rent,  are  not  recognized  in  another  jurisdiction  under 
the  principles  of  comity.  Morgan  v.  Neville,  74  Pa.  52 ;  Waldron  v. 
Ritchings,  3  Daly,  288;  Siegel  v.  Robinson,  56  Pa.  19,  93  Am.  Dec. 
775;  Kelly  v.  Davenport,  1  Brovv^ne  (Pa.)  231;  Ross  v.  Wigg,  34 
Hun,  192 ;  Ludlow  v.  Van  Rensselaer,  1  Johns.  95 ;  Skinner  v.  Tinker, 
34  Barb.  333.  It  is  well  understood,  also,  that  the  statutes  of  one  state 
giving  a  right  of  action  to  recover  a  penalty  have  no  force  in  another. 
Huntington  v.  Attrill,  146  U.  S.  657,  13  Sup.  Ct.  224,  36  L.  Ed.  1123. 
So,  also,  rights  of  action  arising  under  foreign  bankrupt,  insolvent,  or 
assignment  laws  are  not  recognized  here  when  prejudicial  to  the  inter- 
ests of  our  own  citizens.  Warner  v.  Jafifray,  96  N.  Y.  248,  48  Am. 
Rep.  616;  In  re  Waite,  99  N.  Y.  433,  2  N.  E.  440;  Barth  v.  Backus, 
140  N.  Y.  230,  35  N.  E.  425,  23  L.  R.  A.  47,  37  Am.  St.  Rep.  545 ; 
Douglass  V.  Phoenix  Ins.  Co.,  138  N.  Y.  209,  33  N.  E.  938,  20  L. 
R.  A.  lis,  34  Am.  St.  Rep.  448.  There  is  another  class  of  cases 
where  the  right  to  enforce  the  foreign  statute  is  conditioned  upon  the 
existence  of  a  law  substantially  similar  here.  Wooden  v.  Western  N. 
Y.  &  P.  R.  Co.,  126  N.  Y.  10,  26  N.  E.  1050,  13  L.  R.  A.  458,  22 
Am.  St.  Rep.  803.  Statutes  giving  a  right  of  action  for  negligence 
resulting  in  death  belong  to  that  class.     Whitford  v.  Panama  R.  Co., 

Meili,  Die  theoretisclien  Abhandlungen  von  Bartolus  und  Baldus  iiber  das 
Internationale  Privat-  und  Strafreclit,  4  Niemeyer,  258-269.  340-346,  446-^73; 
and  F.  Meili,  Argentrfeus  und  Molinaeus  und  ihre  Bedeutung  im  internation- 
alen  Privat-  und  Strafrecht,  5  Niemeyer,  363-380,  452-472,  554-566. 


14 


GENERAL  PROVISIONS. 


(Part  1 


23  N.  Y.  465.  There  are  many  other  classes  of  foreign  statutes  affect- 
ing public  and  private  interests  which  courts  have  uniformly  held 
can  have  no  extraterritorial  force  or  effect."* 


EXTRACTS  FROM  A.  S.  DE  BUSTAMANTE,  TRATADO  DE 
DERECHO  INTERNACIONAL  PRIVADO,  Habana,  1896,  455-- 
456:  "It  is  a  recognized  fact  that  the  laws  emanating  from  each 
sovereignty  are  normally  applicable  within  its  territorial  limits.  That 
states  have  no  means  of  securing  or  imposing  the  observation  and 
respect  of  their  laws  in  foreign  countries  is  also  correct.  But  the 
author,  who  accepts  the  premises,  finds,  when  it  is  asserted  that  a 
nation  has  the  right  to  impose  all  of  its  laws  upon  all  persons  re- 
siding within  its  territory  and  is  in  no  way  bound  to  permit  the 
application  of  foreign  law,  that  exaggerated  and  false  deductions  are 
made  therefrom.  Moreover,  the  system  of  absolute  territoriality,  in- 
stead of  settling  conflicts,  simply  renders  their  existence  impossible 
/  and,  by  modifying  the  capacity  of  persons  according  to  the  place  where 
they  may  happen  to  be,  fails  to  recognize  that  all  laws  are  not  enacted^ 
for_foreigners  and  to  that  extent  cannot  be  applicable  to  them^ 

"Of  comity  it  has  been  said  that  in  theory  it  is  a  simple  manifesta- 
tion of  the  doctrine  of  interest,  and  that  in  practice,  instead  of  uniting, 
it  isolates  and  separates,  nations ;  that  it  confounds  two  things  so 
distinct  as  the  actual  power  and  the  duty  of  a  state;  that  it  implies 
a  negation  of  the  latter ;  that,  in  view  of  the  different  ways  in  which 
it  may  be  interpreted,  it  will  never  be  able  to  put  into  relief  the  law 

4  "No  attempt  to  define  the  limits  of  that  resers'ation  (public  policy)  has 
ever  succeeded,  even  to  the  extent  of  making  its  nature  clearer  than  by  say- 
ing that  it  exists  in  favor  of  any  stringent  domestic  policy,  and  that  it  is 
for  the  law  of  each  country,  whether  speaking  by  the  mouth  of  its  Legis- 
lature or  by  that  of  its  judges,  to  determine  what  parts  of  its  policy  are 
stringent  enough  to  require  its  being  invoked." — Westlake,  Priv.  Int.  Law.  53. 

Continental  Law. — On  the  continent  foreign  law  will  yield  to  the  local 
law  whenever  its  enforcement  is  deemed  contrary  to  its  rules  concerning  pub- 
lic order.  France,  article  6,  Giv.  Code.  Itahi,  article  12,  Prel.  Disp.  Civ. 
Code.  Germany,  article  30,  Law  Intr.  Civ.  Code,  pi'oviding:  "The  appli- 
cation of  a  foreign  law  is  excluded,  if  it  would  be  repugnant  to  good  morals 
(gute  Sitten)  or  to  the  object  of  a  German  law." 

In  order  to  dlstinguisli  such  rules  from  rules  of  municipal  law  applicable 
only  to  transactions  taking  place  within  the  jurisdiction,  it  is  customary  to 
call  the  former    rules  concerning  "international  public  order." 

See,  also.  A.  de  Bustamante,  El  orden  publico.  Havana.  1893 :  R.  Bois- 
sarie,  De  la  notion  de  I'ordre  public  en  droit  international  prive,  Paris. 
18S8;  F.  Despagnet.  L'ordre  public  en  droit  international  prive.  16  Clunet, 
.^21 ;  P.  Fedozzi,  Quelques  considerations  sur  I'idee  d'ordre  public  inter- 
national, 24  Clunet.  GO-78,  495-507 :  P.  Fiore,  Do  la  limitation  de  I'autori- 
t('  des  lois  etrangeres  et  do  la  dt'termination  des  lois  d'ordre  public.  35 
Clunet,  351-300;  F.  Kahn.  Die  Lohi-e  vom  Ordre  Public,  39  Ihering's  Jahr- 
biicher  fiir  die  Dogmalik  des  biirgerlichen  Rechts,  4-112;  P.  Klein,  Zur  Aus- 
legung  des  Art.  30  des  E.  0.  /Aim  dentscheu  B.  G.  B.,  14  Niemeyer,  140-151; 
P.  Klein,  Die  Lehre  vom  Ordre  Public.  29  Archiv  fiir  biirgerliches  Recht, 
311-384, 


Ch.  1)  NATURE    OF   THE    SUBJECT.  15 

applicable  to  each  case  and  does  not  establish  a  criterion  for  the 
choice  of  law  between  the  different  foreign  systems.     *     *     * 

"If  nations  lived  isolated  one  from  the  other,  and  in  a  state  of  con- 
stant and  interminable  enmity,  the  correctness  of  the  first  ground  upon 
which  the  doctrine  of  the  North  American  and  English  writers  is 
based  would  have  to  be  admitted.  But  since  peace  is  the  habitual 
state  in  international  relations,  making  of  the  civilized  peoples  a  large 
voluntary  association,  whose  ties  and  necessities  are  increasing  every 
day,  law  itself  cannot  hold  aloof  from  the  exchange  of  products,  cus- 
toms and  institutions,  which  is  the  basis  and  source  of  the  cosmo- 
politanism of  our  time.  When  everything  passes  the  frontiers  law- 
fully, law  itself  should  not  be  confined  within  the  limits  of  the  state 
enacting  it,  and  thus  become  an  insurpassable  obstacle  to  this  very 
exchange  of  men,  things  and  ideas  which  characterizes  modern  civ- 
ilization. But  we  shall  see  hereafter,  and  in  the  preliminary  chapters 
we  have  already  seen,  how  Private  International  Law  finds  its  solid 
basis  in  the  international  community,  which,  at  the  same  time  guar- 
antees the  independence  of  each  state  and  imposes  the  application  of 
foreign  law  to  certain  juridical  relationships.  The  sovereignty  of  a 
state,  correctly  understood,  is  not  injured  by  this,  although  it  would 
be  necessary  to  deprive  it  of  some  of  the  attributes  with  which  the 
adherents  of  the  statute  school  of  jurists  clothed  it  and  with  which 
Anglo-American  writers  pretend  to  ack)rn  it  still. 

"Comity  is  a  pretext  for  the  evasion  of  the  consequences  of  a  strict- 
ly territorial  law.  After  the  notion  of  such  a  law  is  denied,  it  would 
be  idle  to  combat  it.  for  it  becom.es  unnecessary.  But  it  may  not  be 
amiss  to  observe  that  in  its  obscured  and  little  defined  concept,  interest, 
courtesy  and  reciprocity,  ideas  so  important  for  the  history  of  law, 
play  a  part.  In  another  place  we  have  dealt  with  these  ideas,  giving 
our  opinion  with  respect  thereto.  The  name  of  science  cannot  be 
given  to  them,  nor  can  a  practical  and  useful  system  be  based  upon 
them.  They  authorize  simply  concessions  ungoverned  by  rule,  the  sup- 
posed independence  of  a  state  consisting  in  an  adjustment  of  its  con- 
duct to  that  followed  by  other  states,  resulting  ultimately  in  a  real 
isolation  between  the  people  of  the  different  countries,  and  in  making 
of  courtesy  and  reciprocity  a  system  of  reprisal,  instead  of  a  further- 
ance of  juridical  relations," 


WABASH  R.  CO.  v.  HASSETT  (Ind.  1908)  83  N.  E.  705,  70S. 
IMontgomicry,  J. :  "Appellant's  learned  counsel  insist,  however,  that 
this  suit  cannot  be  maintained  in  Indiana,  because  the  statute  of  Illinois, 
creating  the  right  of  action,  provides  'that  no  action  shall  be  t>rought 
or  prosecuted  in  this  state  to  recover  damages  for  a  death  occurring 
outside  of  the  state.'  It  is  argued  that  jurisdiction  of  a  cause  of 
action  arising  under  the  statute  of  one  state  is  sustained  by  the  courts 


16  GENERAL  PROVISIONS.  (Part  1 

of  another  only  upon  the  ground  of  comity  or  reciprocity,  and,  since 
the  courts  of  IlHnois  cannot  entertain  a  similar  cause  of  action  arising 
under  the  statute  of  this  state,  the  requisite  reciprocity  is  wanting  and 
jurisdiction  of  our  courts  over  this  action  must  fail.  The  cases  cited 
which  seemingly  support  this  doctrine  are :  Baltimore  &  O.  R.  Co.  v. 
Chambers,  73  Ohio  St.  16,  76  N.  E.  91,  11  L.  R.  A.  (N.  S.)  1012; 
Wabash  R.  Co.  v.  Fox,  61  Ohio  St.  133,  59  N.  E.  888,  83  Am.  St. 
Rep.  739.  These  Ohio  decisions  were  based  upon  a  statute  permit- 
ting actions  for  wrongful  death  occasioned  in  another  state  to  be  en- 
forced in  that  state  only  where  such  other  state  allowed  the  statutes  of 
Ohio  of  a  like  character  to  be  enforced  in  its  courts.  The  reciprocity 
policy  of  Ohio  was  thus  embodied  in  a  positive  statute.  The  English 
rule  is  to  the  same  effect.  22  Am.  &  Eng.  Ency.  of  Law,  1379.  The 
doctrine  of  reciprocity  is  a  fair  and  reasonable  principle  to  govern  the 
conduct  of  independent  nations  in  affording  relief  to  aliens  through 
their  courts.  The  people  of  the  United  States  comprise  one  nation, 
banded  together,  among  other  reasons,  to  'establish  justice'  and  'to 
promote  the  general  welfare.'  Each  state  may  undoubtedly  limit  the 
jurisdiction  of  its  courts  and  formulate  its  local  policy;  but,  in  the 
absence  of  a  state  policy  declared  and  restricted  by  statute,  the  rule 
contended  for  is  too  narrow  and  illiberal  to  meet  our  approval.  The 
statutes  of  a  state  have  no  extraterritorial  force,  but  they  are  effective 
within  the  state  enacting  them,  and,  if  they  create  a  valid  right  of 
action  there,  such  liability  may  be  recognized  and  enforced  elsewhere 
upon  proper  complaint  and  proof.  Civil  rights,  whether  founded  upon 
statutes  or  the  common  law,  are  not  local,  and  actions  to  recover  dam- 
ages for  the  violation  of  such  rights  are  transitory,  and  not  confined 
to  the  state  where  the  cause  of  action  accrued.  The  circuit  courts  of 
this'  state  are  courts  of  general  jurisdiction,  and  unquestionably  have 
jurisdiction  over  the  subject-matter  of  transitory  actions.  The  juris- 
diction or  power  of  the  court  to  afford  a  remedy  for  a  legal  liability 
is  not  dependent  upon  the  question  whether  the  right  to  be  enforced 
is  of  statutory  or  of  common-law  origin.  If  a  liability  has  been  in- 
curred, and  a  right  of  action  therefor  has  accrued,  such  action  may 
ordinarily  be  prosecuted  in  any  court  which  has  jurisdiction  of  such 
matters  and  can  obtain  jurisdiction  over  the  parties.  If  the  Legisla- 
ture, as  it  might  have  done,  had  spoken  against  the  enforcement  of 
foreign  causes  of  action  like  this,  the  courts  would  readily  obey  its 
mandate.  The  policy  of  Illinois  in  this  respect  is  embodied  in  a  pro- 
hibitory statute.  Conditions  may  exist  within  that  state,  which  do  not 
obtain  here,  making  such  policy  expedient.  The  right  of  action  herein 
asserted  is  founded  wholly  upon  the  statute  of  Illinois,  and  in  nowise 
upon  that  of  this  state  relating  to  the  same  subject.  Our  statute  is 
important  only  as  it  manifests  the  general  policy  of  this  state  toward 
such  legislation ;  and  the  circumstance  that  the  courts  of  Illinois  are 
not  permitted  to  entertain  a  suit,  based  upon  a  foreign  statute  to  re- 
cover damages  for  death  by  wrongful  act,  cannot  affect  the  jurisdic- 


Ch.  1)  NATURE   OF  THE   SUBJECT.  17 

tion  of  our  courts,  or  control  the  policy  of  this  state,  and  of  itself  will 
not  impel  our  courts  to  adopt  retaliatory  procedure.  The  failure  and 
injustice  of  the  common  law  to  afford  redress  for  a  negligent  injury 
resulting  in  death  is  recognized  by  the  enactment  of  our  statute 
creating  a  right  of  action  for  the  benefit  of  the  widow  and  next  of 
kin.  The  policy  of  Indiana,  so  far  as  outlined  or  expressed  by  the 
Legislature,  is  favorable  to  remedial  legislation  of  this  character.  If 
a  legal  liability  exists,  a  justice-loving  people  should  be  inclined  to 
afford  a  remedy  within  their  power,  and  we  find  nothing,  either  upon 
the  ground  of  adverse  interests  or  public  policy,  to  preclude  the 
courts  of  this  state  from  entertaining  jurisdiction  of  this  action.  In 
reaching  this  conclusion  we  approve  the  modern  and  generally  ac- 
cepted doctrine  that  to  justify  our  courts  in  refusing  to  enforce  a  right 
of  action  accruing  under  the  laws  of  another  state  as  against  the  policy 
of  this  state  the  prosecution  of  such  action  must  appear  to  be  against 
good  morals  or  natural  justice,  or  prejudicial  to  the  general  interests 
of  the  citizens  of  this  state." 


COLLIER  v.  RIVAZ.» 

(Prerogative  Court  of  Canterbury,  1841.     2  Curt.  Ecc.  855.) 

Sir  Herbert  Jenner.  This  is  a  question  with  respect  to  certain 
testamentary  papers  of  Mr.  Philip  Ryan,  who  died  at  Brussels  in  1829. 
He  left  behind  him  two  nieces,  Mary  Ryan  and  Mrs.  Langebear,  a 
widow,  who  would  have  been  entitled  to  his  personal  estate  in  case  he 
had  died  intestate.  He  left  property  to  the  amount  of  about  £20,000. 
In  September,  1824,  he  executed  a  will,  of  which  he  appointed  Mr. 
V.  F.  Rivaz,  Mary  Ryan,  and  A.  H.  Rivaz,  executors,  and  his  niece, 
]\Iary  Ryan,  residuary  legatee;  he  also  left  behind  him  six  codicils, 
four  of  which  are  opposed,  upon  the  ground  that  they  are  not  executed 
according  to  the  forms  of  the  law  of  Belgium,  in  which  country, 
it  was  contended,  that  the  deceased  was  domiciled  at  the  time  of  his 
death.  [After  finding  that  the  testator  was  domiciled  at  Brussels,  at 
the  time  of  his  death  the  learned  justice  continued  as  follows :] 

The  question  however  remains  to  be  determined,  whether  these 
codicils  which  are  opposed  are  executed  in-  such  a  form  as  would 
entitle  them  to  the  sanction  of  the  court  which  has  to  pronounce  on 
the  validity  of  testamentary  dispositions  in  Belgium,  in  the  circum- 
stances under  which  they  have  been  executed.  Because  it  does  not 
follow,  that  Mr.  Ryan,  being  a  domiciled  subject  of  Belgium,  he  is 
therefore  necessarily  subject  to  all  the  forms  which  the  law  of  Belgium 

5  This  case,  as  well  as  the  two  succeeding  cases,  involves  what  is  gener- 
ally known  as  the  "renvoi"  doctrine  or  theory  (in  German,  "Riickverweisung" 
and  "Weiterverweisung"). 

LOB.CONF.L.— 2 


18  GENERAL   PROVISrONS.  (Part  1 

requires  from  its  own  native-born  subjects,  I  apprehend  there  can 
be-  no  doubt  that  every  nation  has  a  right  to  say  under  what  circum- 
stances it  will  permit  a  disposition,  or  contracts  of  whatever  nature 
they  may  be,  to  be  entered  into  by  persons  who  are  not  native  born, 
but  who  have  becpme  subjects  from  continued  residence;  that  is,  for- 
eigners who  come  to  reside  under  certain  circumstances  without  ob- 
taining from  certain  authorities  those  full  rights  which  are  necessary 
to  constitute  an  actual  Belgian  subject.  Every  nation  has  a  right  to 
say  how  far  the  general  law  shall  apply  to  its  own  born  subjects,  and 
the  subjects  of  another  country;  and  the  court  sitting  here  to  deter- 
mine it,  must  consider  itself  sitting  in  Belgium  under  the  particular 
circumstances  of  the  case. 

Now  three  witnesses  have  been  examined  wnth  respect  to  the  law 
of  Belgium",  as  applying  as  well  to  the  acquiring  of  a  domicile  in 
Belgium  as  to  the  law  with  respect  to  the  execution  of  testamentary 
instruments. 

With  respect  to  domicile  acquired,  it  is  quite  clear,  according  to 
the  evidence  of  these  persons,  that  no  domicile  according  to  ,the  law 
of  Belgium  can  be  acquired  unless  the  authority  of  the  ruling  powers 
is  obtained  to  authorize  the  person^  who  apply  for  that  authority  to 
continue  in  that  country;  that  unless  that  authority  is  obtained  he  is 
liable  to  be  removed  at  any  time ;  that  having  obtained  that  authority 
he  then  becomes  to  all  intents  and  purposes  a  subject  of  Belgium,  and 
has  a  right  to  remain  there  and  enjoy  the  privileges  of  a  natural-born 
subject.  But  it  may  be  a  different  question,  whether  a  person  who  has 
not  obtained  that  authority,  a  mere  resident  there,  is  to  be  considered 
as  a  foreigner  simply  having  a  residence  and  not  a  domicile.  I  think 
it  is  very  doubtful  whether  the  Dutch  and  Belgian  lawyers  understand 
the  same  thing — from  the  evidence  given  with  respect  to  domicile — ■ 
v^rhether  they  do  not  consider  that  a  person  to  become  domiciled, 
must  have  denization,  that  which  is  equivalent  to  our  naturalization, 
and  they  do  not  mean  simply  domicile  for  the  purpose  of  succession  or 
anything  of  that  description,  but  they  consider  that  a  person  in  order 
to  become  domiciled  must  place  himself  by  the  authority  of  the  gov- 
ernment in  the  same  situation  as  a  Belgian  subject,  and  have  the  rights 
and  privileges  of  that  country.  '  But  I  think  it  is  not  necessary  to  in- 
quire into  this,  because  I  think  we  have  the  conclusive  evidence  of  two 
witnesses  as  to  that  which  is  necessary  to  give  validity  to  the  testa- 
mentary dispositions  of  persons  who  reside  there,  but  have  not  ac- 
quired all  the  rights  of  Belgian  subjects.  [The  learned  justice  here 
recited  the  testimony  of  the  witnesses  and  continued  as  follows :] 

Then  according  to  the  opinion  of  these  gentlemen,  well  skilled  in 
the  practical  application  of  the  Code  Napoleon  and  its  dispositions, 
and  which  was  the  law  in  force  in  Belgium  up  to  the  year  1830.  when 
the  separation  of  the  two  countries  took  place,  and  consequently  at 
the  time  at  which  these  testamentary  document.^",  of  Mr.  Ryan  were 
executed,  they  do  not  consider  that  Mr.  Ryan,  as  a  foreigner,  was 


Ch.  1)  NATUKE    OF   THE    SUBJECT.  19 

bound  by  the  requisites  of  the  law  of  Belgium,  as  to  the  form  and 
execution  of  a  will,  as  would  necessarily  be  the  case  with  a  free, 
natural-born  subject  of  Belgium ;  but  the  successions  of  persons  who, 
however  long  they  might  have  been  resident,  not  having  obtained  the 
royal  authority  to  reside  there,  being  considered  as  mere  foreigners, 
would  be  governed  by  the  laws  of  their  own  country,  and  would  be 
upheld  by  the  courts  of  Belgium,  if  those  courts  were  called  on  to 
decide.  The  court  sitting  here  decides  from  the  evidence  of  persons 
skilled  in  that  law,  and  decides  as  it  would  if  sitting  in  Belgium. 

Therefore  I  am  of  opinion,  that  notwithstanding  the  domicile  of 
Mr.  Ryan  must  be  considered  to  have  been  in  Belgium,  and  that  he 
had  in  point  of  law  abandoned  his  original  domicile,  and  had  acquired 
animo  et  facto  a  domicjle  in  a  foreign  country,  yet  that  foreign 
country  in  which  he  was  so  domiciled  would  uphold  his  testamentary 
disposition,  if  executed  according  to  the  forms  required  by  his  own 
country.  I  am  therefore  of  opinion,  that  I  am  bound  to  decree  probate 
of  the  will  and  all  the  codicils.  And  I  decree  the  costs  of  all  parties  to 
be  paid  out  of  the  estate.® 


BREMER  V.  FREEMAN. 

(Privy  Council,  1857.    10  Moo.  P.  C.  306.) 

An  Englishwoman  resided  uninterruptedly  in  France  for  a  period 
of  fifteen  years  without  any  business  or  occupation  in  that  country; 
renting  apartments  upon  lease,  and  making  declarations  never  to  re- 
turn to  England ;  providing,  moreover,  a  vault  in  the  cemetery  of 
Pere  La  Chaise  in  Paris,  where  she  expressed  her  wish  to  be  buried. 
In  1843  she  made  a  will  in  Paris  in  the  English  form,  executed  ac- 
cording to  the  wills  act  (St.  1  Vict.  c.  26),  but  not  in  accordance  with 
the  requirements  of  the  French  law.  By  this  will  she  bequeathed 
personal  property,  the  bulk  of  which  was  in  English  funds,  to  parties 
resident  in  England.  The  dgceased.jit_the  time  of  the  making  of  the 
will  and  at-  her  death  was  not  naturalized  in  France,  nor  had  she  ob- 
tained any  authorization  as  required  by  the  thirteenth  article  of  the 
Code  Napoleon.' 


Lord  WensIvEydale.'  *  *  *  The  onus  of  proving  that  an  in- 
strument is  the  will  of  the  alleged  testator  lies  on  the  party  propound- 
ing it.    The  respondent  has  undoubtedly  established  a  prima  facie  case 

6 Accord:     lu  re  Browu-Sequard,  70  Law  T.  Rep.  (N.  S.)  Sll  (1S94). 
7  This  brief  statement  of  facts,  which  has  been  taken  from  the  headnote. 
has  been  substituted  for  that  of  tlie  original  report. 
8A  part  of  the  opinion  has  been  omitted. 


20  GENERAL  PROVISIONS.  (Part  1 

by  the  evidence  he  has  adduced  of  the  due  execution  of  the  will. 
The  onus  probandi,  then,  lies  upon  the  party  impeaching  the  will,  to 
show  that  it  ought  not  to  be  admitted  to  proof. 

The  appellant  alleges  that  the  supposed  testatrix  was  at  the  time  of 
her  death  (for  that  is  the  material  date)  domiciled  elsewhere  than  in 
England.  The  burden  of  proof  of  that  fact  unquestionably  rests  upon 
her.  She  must  establish  that  the  alleged  testatrix  had  lost  her  domi- 
cile in  England;  and  if  it  is  proved  that  she  abandoned  it  and  gained 
another  elsewhere,  and  died  in  that  new  domicile,  the  onus  probandi 
is  then  shifted,  and  it  lies  upon  the  party  propounding  the  will  to 
prove  that  the  law  of  that  domicile  was  such  as  to  authorize  a  will 
in  that  form.  If  he  fails  in  that  proof  the  wih  propounded  cannot  be 
admitted  to  probate. 

That  the  law  of  the  testator's  domicile  at  the  time  of  making  the 
will,  and  of  the  death  of  the  testator,  when  there  is  no  intermediate 
change  of  domicile,  must  govern  the  form  and  solemnities  of  the  in- 
strument, can  no  longer  be  questioned.     *     *     * 

Two  questions,  therefore,  are  to  be  disposed  of  in  this  case: 

First.  Has  the  appellant  proved  satisfactorily  that  the  deceased, 
Madame  Calcraft,  or  Allegri,  died  domiciled  in  Italy,  or  in  France, 
where  the  appellant  alleges  that  she  was  actually  then  domiciled? 

Secondly.  Has  the  respondent  established,  to  the  satisfaction  of 
their  lordships,  that  by  the  municipal  law  of  the  domicile  at  the  time 
of  death  the  will  propounded  was  valid? 

We  proceed  to  consider  these  questions  in  their  order. 

[His  lordship  considered  here  the  evidence  as  to  domicile  and  con- 
tinued as  follows:] 

On  the  whole,  their  lordships  entirely  concur  with  the  learned  judge 
in  his  opinion  that  the  deceased  was  domiciled,  according  to  the  law 
of  nations,  at  Paris,  both  at  the  time  of  her  death  and  the  time  of 
making  her  will,  if  that  is  at  all  material ;  and  we  think  it  is  not. 

This  domicile  being  established  in  evidence,  the  burden  is  thrown 
on  the  respondent  to  prove  that  the  will,  in  the  English  form,  is 
sanctioned  by  the  municipal  law  of  France.  He  must  show,  upon 
the  balance  of  the  conflicting  evidence  in  the  cause,  that  the  wills  of 
persons,  so  domiciled,  in  that  form,  are  allowed  by  that  law. 

This  is  the  important  question,  and  the  only  one  of  any  difficulty  in 
the  case. 

Much  evidence  was  produced  of  the  law  of  France  on  both  sides; 
the  viva  voce  testimony  of  experts  in  the  science  and  practice  of  the 
law,  vouching  and  referring  to  the  Code  Napoleon  decrees,  and  to 
known  treatises.  Some  of  those  last  have  been  since  brought  forward 
and  referred  to  without  objection  on  either  side,  and  their  lordships 
have  to  decide  on  the  whole  of  this  (for  the  most  part)  very  un 
satisfactory,  confused,  and  conflicting  evidence,  whether  they  are  con- 
vinced that  this  will,  executed  in  France  in  the  English  form,  is  valid. 

On  the  part  of  the  respondent,  five  persons  practicing  in  the  French 


Ch,   1)  NATURE    OF   THE    SUBJECT.  21 

courts,  stating  themselves  to  be  experienced  in  the  law  of  France,  were 
examined ;  on  the  part  of  the  appellant,  three.  It  is  to  be  lamented  that 
from  the  very  nature  of  the  case  we  cannot  satisfy  ourselves  by  the 
personal  examinations  of  those  witnesses  as  to  the  weight  due  to  each 
of  them,  and  a  proper  sense  of  professional  delicacy  precludes  them 
from  giving  evidence  as  to  the  merits  of  each  other.  We  are  com- 
pelled, therefore,  to  decide  the  disputed  question  with  inadequate 
means  of  judging  of  their  professional  eminence,  their  skill,  and  knowl- 
edge. It  is  to  be.  remarked,  speaking  with  all  respect  to  those  gentle- 
men, that  the  rule  of  international  law  which  all  English  lawyers  con- 
sider as  now  firmly  established,  namely,  that  the  form  and  solemnities 
of  the  testament  must  be  governed  by  the  law  of  the  domicile  of  the 
deceased,  does  not  appear  to  be  recognized,  or  at  least  borne  in  mind, 
by  any  of  them.  Nay,  in  Quartin's  Case,  both  th-e  Cour  Royale  and  the 
Cour  de  Cassation,  expressly  decided  that  the  will  must  be  in  the 
form  and  with  the  solemnities  of  the  place  where  it  is  made,  on  the 
principle  that  "locus  regit  actum" ;  an  error  which  is  ably  exposed  in 
the  opinion  of  M.  Target  in  the  Duchess  of  Kingston's  Case  (Coll.  Jur. 
p.  323).  The  three  witnesses  called  for  the  appellant,  Messrs.  Frignet, 
Senard,  and  Paillet,  all  maintain  the  same  doctrine. 

If  this  position  were  really  true,  the  case  of  the  appellant  would 
prevail,  but  the  other  witnesses  do  not  maintain  the  same  doctrine. 
Of  the  five  experts  examined  for  the  respondent,  three,  Messrs. 
Blanchet,  Hebert,  De  Vatismesnil,  all  think  that  the  will,  either  in  the 
form  required  by  the  law  of  the  domicile  of  origin,  or  the  place  where 
the  party  dwells,  is  valid;  a  position  which,  by  English  lawyers,  is 
certainly  now  considered  to  be  exploded  since  the  case  of  Stanley  v. 
Bernes. 

The  whole  of  these  five  experts  give  their  opinion  that  the  deceased 
never  was  domiciled  de  facto,  according  to  the  law  of  nations,  in 
France,  upon  the  facts  stated  in  the  case.  In  that  respect  their 
lordships  have  already  intimated  that  they  entertain  a  contrary  opin- 
ion, and  that  circumstance,  although  it  is  quite  consistent  with  their 
being  right  in  their  opinion  of  the  law,  a  little  diminishes  the  reliance 
to  be  put  upon  it. 

These  five  witnesses  all  say,  some  less  decidedly  than  others,  that 
to  gain  a  legal  domicile  in  France  the  authorization  of  the  Emperor 
was  necessary.  Some  admit  that  there  are  contrary  dicta  and  decisions. 
The  other  three  experts,  those  examined  on  behalf  of  the  appellant, 
give  their  opinion  that  to  acquire  a  legal  domicile,  such  as  will  cause 
the  succession  to  open  in  France,  the  imperial  authorization  is  not 
necessary  (Frignet,  Senard,  and  Paillet),  but  most  of  these  experts 
also  admit  that  it  is  a  disputed  question. 

This  difference  between  the  learned  experts  arises  upon  the  con- 
struction of  the  thirteentji  article  of  the  Code  Napoleon,  upon  which 
we  can  form  some  opinion  ourselves.  It  is  to  this  effect:  "The 
foreigner  who  shall  have  been  admitted  by  authorization  of  the  Emper- 


22  GENERAL  PROVISIONS.  (Part  1 

or  to  establish  his  domicile  in  France,  shall  enjoy  there  all  civil  rights, 
so  long  as  he  shall  continue  to  reside  there."  It  is  said  that  the  rights 
of  testacy  and  succession  are  civil  rights,  and  that  a  domiciled  foreigner 
cannot  enjoy  those  rights  without  this  authorization.  Pothier,  in  his 
treatise  "De  la  Communaute,"  pt.  I,  c.  1,  art.  1,  classes  the  right  of 
testacy  and  succession  among  civil  rights,  M^hicli  strangers  have  thought 
not  to  include  domicile,  and  contracts  among  the  "droits  des  gens," 
which  strangers  have  thought  to  be  included;  and  in  his  "Traite  des 
Testaments,"  c.  3,  §  1,  art.  1,  p.  309,  he  says:  "Le  testament  ap- 
partient  au  droit  civil,  d'ou  il  suit  qu'il  n'y  a  que  ceux  qui  jouissent 
des  droits  de  citoyens  qui  puissent  tester,"  and,  therefore,  "aubains" 
are  strangers  not  naturalized,  are  regularly  incapable  of  bequeathing 
the  goods  they  have  in  France. 

The  affirmative  provision  that  every  foreigner  who  shall  be  author- 
ized to  fix  his  domicile  in  France  shall  have  all  the  civil  rights,  though 
it  does  not  explicitly  say  so,  no  doubt  means  that  the  foreigner,  to  en- 
joy all,  must  have  that  authorization;  but  it  does  not  follow  from  that 
provision  alone  that  he  cannot  enjoy  any  one  or  more  of  those  rights 
without  it ;  he  may  quite  consistently  with  that  article  have  the  power 
of  testacy  and  the  power  of  leaving  his  succession  to  devolve  on  his 
family. 

But  assuming  that  the  thirteenth  article  prohibits  the  exercise  of  any 
civil  right  to  one  who  is  domiciled,  but  has  not  an  authorization  from 
the  Emperor,  and,  therefore,  denies  the  right  of  testacy  altogether, 
what  is  the  consequence?  Is  it  that  the  foreigner  cannot  make  any 
will  at  all  of  his  personal  goods,  wherever  situated,  or  only  of  his 
personal  goods  situated  in  France? 

If  the  former  is  to  be  considered  as  the  true  construction,  then  the 
consequence  is  that  a  stranger,  if  he  elects  to  domicile  himself  in,  and 
dies  in,  France  without  authorization,  loses  his  power  of  making  a 
will  altogether,  and  his  effects  by  the  law  of  nations  will  not  pass  under 
his  will,  according  to  the  rule  already  stated.  What  rights  his  relatives 
would  have  is  another  question. 

If  he  should  be  domiciled  in  a  country  where,  on  death,  by  law  all 
his  effects  go  to  the  sovereign  by  a  "droit  d'aubaine,"  more  extensive 
than  that  of  old  France,  which  applied  only  to  personal  effects  within 
the  kingdom,  that  law  must  prevail,  and  his  will  would  be  of  no 
validity,  and  his  relatives,  by  the  law  of  his  domicile  of  origin,  would 
lose  all  their  rights.  In  this  view  of  the  thirteenth  article,  this  will 
cannot  be  admitted  to  probate. 

If  the  meaning  is,  as  seems  probable  (see  Merlin,  Rep.  de  Jur.  art. 
"Etranger,"  §  11,  Ed.  1812),  that  he  shall  have  no  power  unless  so 
authorized,  to  make  a  will  of  personal  effects  situate  in  France,  but 
he  may  for  those  elsewhere,  still  his  will,  to  have  any  effect,  must  be 
in  the  form  and  with  the  solemnities  of  his  domicile,  according  to  the 
general  rule,  otherwise  it  cannot  be  admitted  to  proof,  and  the  prop- 
erty in  France  would  not  pass  by  it.     So  that  upon  any  construction 


Ch.   1)  NATURE    OF   THE    SUBJECT.  23 

of  this  article,  on  the  assumption  that  the  power  of  making  a  will 
is  one  of  the  civil  rights  on  which  it  operates,  the  will  in  question  is 
not  valid. 

There  seems  strong  ground  to  contend  that  the  restraint  upon  the 
power  of  testacy,  and  of  the  right  of  devolving  personal  effects  upon 
relatives,  is  done  away  with  altogether  by  subsequent  legislation.  By 
the  law  of  the  14th  of  July,  1819,  foreigners  are  entitled  to  succeed, 
and  to  dispose  and  receive  in  the  same  way  as  French  subjects  in  all 
the  extent  of  the  kingdom.  If  a  stranger  can  dispose  of  his  personal 
property  in  France,  or  anywhere  else  by  will,  why  should  he  be  the 
less  able  to  do  it,  because  he  is  domiciled  in  France? 

Be  that  as  it  may,  if  the  power  of  testacy  is  still  restrained  by  the 
thirteenth  article  of  the  Code  Napoleon,  and  if  the  only  effect  of  that 
article  is,  that  a  foreigner  may  be  legally  domiciled,  but  yet  not  enjoy 
the  civil  right  of  making  a  will,  this  will  ought  not  to  be  admitted  to- 
proof. 

But  it  is  then  contended  on  the  part  of  the  respondent,  that  by  the 
law  of  France  no  domicile,  for  any  purpose  whatever,  can  be  obtained 
there  except  by  the  previous  authorization  of  the  government.  The 
witnesses  differ  on  this  point,  and  it  will  be  proper  to  take  a  short 
review  of  the  decided  cases  and  the  principal  text  authorities  cited  at 
the  bar  on  both  sides.     *     *     * 

On  the  whole,  then,  on  a  review  of  all  this  evidence  of  the  law 
of  France,  their  lordships  are  clearly  of  opinion,  that  it  is  not  estab- 
lished, that  for  the  purpose  of  having  a  domicile  which  would  regu- 
late the  succession,  any  authorization  of  the  Emperor  was  necessary ; 
that  a  legal  domicile  for  this  purpose  was  clearly  proved,  and  that 
consequently,  if  the  testatrix  had  a  power  to  make  a  will  at  all,  the 
will  in  this  form  was  invalid. 

There  are  still  two  English  cases  to  be  noticed.  The  respondent 
relies  on  Collier  v.  Rivaz  (2  Curteis,  855),  in  which  Sir  Herbert  Jenner 
Fust  decided  that  on  the  evidence  before  him  an  Englishman  domiciled 
in  Belgium  by  the  law  of  nations,  but  not  authorized  by  the  govern- 
ment, according  to  the  thirteenth  article  of  the  Civil  Code  of  France, 
in  force  there,  might  make  a  will  in  the  English  form.  The  case  was 
not  regularly  contested,  which  makes  it  of  less  authority.  It  was  a  • 
mere  question  on  the  parol  evidence  of  the  Belgian  law,  which  was 
very  short  and  unsatisfactory.  Their  lordships  have  referred  to  the 
depositions,  and  doubt  whether  the  learned  judge  was  warranted  by 
the  evidence  contained  in  them  in  coming  to  the  conclusion  which 
he  did.  In  this '  case  the  evidence  on  both  sides  is  very  full,  and 
leads  to  a  different  conclusion.  On  the  other  hand,  there  may  be 
cited  for  the  appellant  the  case  of  Anderson  v.  Laneuville  (9  Moore, 
P.  C.  Cases,  225),  where  the  judicial  committee  decided  that  a  domicile 
was  acquired  in  France,  though  the  deceased  had  not  complied  with 
the  thirteenth  article  of  the  Code  Napoleon,  and  that  objection  was 


24  GENERAL  PROVISIONS.  (Part  1 

distinctly  taken  (page  336).     That  point,  however,  does  not  appear  to 
have  been  much  considered. 

Their  lordships  are  of  opinion  that  the  judgment  of  the  learned  judge 
of  the  Prerogative  Court  was  unsupported  by  the  evidence,  and  will 
advise  Her  Majesty  to  reverse  it,  and  recall  the  probate.  Under  all 
the  circumstances  of  this  case  their  lordships  will  direct  the  whole 
costs  of  these  proceedings  to  be  paid  out  of  the  estate. 


In  re  JOHNSON. 
(Chancery  Division,  1903.    1  Cli.  821,  72  L.  J.  Ch.  682.) 

FarwELI.,  J.*  Mary  Elizabeth  Johnson,  the  testatrix,  was  born  out 
of  wedlock  in  Malta  in  1810.  Her  father,  Thomas  Johnson,  was  a 
British  subject  and  domiciled  in  England  at  the  date  of  her  birth. 
Her  mother,  Marianna  Attard,  was  domiciled  in  Malta  at  her  birth. 
They  eventually  married  in  1815.  The  testatrix  left  Malta  about  1832 
or  1833.  She  made  a  will,  which  does  not  dispose  of  the  whole  of 
her  property.  She  was  at  the  date  of  her  will,  and  thenceforth  down 
to  her  death  on  December  25,  1894,  domiciled  in  Baden.  She  was 
not,  however,  naturalized  in  Baden;  and,  "according  to  the  law  of 
Baden,  the  legal  succession  to  the  property  of  the  deceased  of  which 
she  has  not  disposed  by  will  is  governed  solely  by  the  law  of  the 
country  of  which  the  testatrix  was  a  subject  at  the  time  of  her  death." 
This  is  the  finding  of  fact  in  the  master's  certificate,  and,  there  being 
no  summons  to  vary,  is  binding  on  all  parties.  On  these  facts  the 
master  has  submitted  certain  questions  to  the  court,  which  really  re- 
solve themselves  into  this  one  question :  According  to  what  law  are 
the  rights  of  the  persons  claiming  the  undisposed-of  personal  estate  of 
the  testatrix  to  be  determined  ?  This  personal  estate  consisted  entirely 
of  personal  property  (movables),  situate  partly  in  Germany  and  partly 
in  England. 

Now,  the  rights  of  the  parties  claiming,  in  an  English  court,  mova- 
bles (and  there  is  no  question  in  this  case  of  leaseholds  or  real  estate) 
of  an  intestate  depend  on  the  law  of  his  domicile  at  the  time  of  his 
death.  It  is  a  settled  principle  of  English  law  that  no  one  shall  be 
without  a  domicile.  Every  one  takes  at  birth  the  domicile  of  his 
father  if  he  be  legitimate,  of  his  mother  if  illegitimate,  and  he  may  in 
later  life  acquire  a  domicile  of  choice.  But  until  he  does  so,  or  if 
he  abandons  his  domicile  of  choice,  his  domicile  of  origin  remains 
or  revives.    To  quote  Lord  Watson  (13  App.  Cas.  439):   "Lord  West- 

*A  ijart  of  the  opinion  lias  been  omitted. 


Ch.  1)  NATURE    OF   THE    SUBJECT.  25 

bury  in  Udny  V.  Udny,  L.  R.  1  H.  L.  Sc.  458,  *  *  *  said : 'Domi- 
cile of  choice  is  a  conclusion  or  inference  which  the  law  derives  from 
the  fact  of  a  man  fixing  voluntarily  his  sole  or  chief  residence  in  a  par- 
ticular place,  with  an  intention  of  continuing  to  reside  there  for  an 
unlimited  time.'  According  to  English  law,  the  conclusion  or  infer- 
ence is,  that  the  man  has  thereby  attracted  to  himself  the  municipal 
law  of  the  territory  in  which  he  has  voluntarily  settled,  so  that  it 
becomes  the  measure  of  his  personal  capacity,  upon  which  his  majority 
or  minority,  his  succession,  and  testacy  or  intestacy  must  depend." 
But  when  I  turn  to  the  laws  of  Baden,  at  the  death  of  the  testatrix 
the  municipal  law  of  .which,  according  to  our  law,  the  testatrix  has 
attracted  to  herself,  I  find  that  the  courts  of  Baden  pay  no  heed  to 
domicile — she  is  foreign  to  them  in  birth,  and  had  done  in  her  lifetime 
no  act  which  their  courts  recognise  as  entitling  her  to  be  regarded  as 
a  person  the  succession  to  whose  movables  should  be  regulated  by 
their  law.  According  to  their  law,  the  succession  to  her  movables  v/as 
regulated  by  the  law  of  the  country  of  which  she  was  a  subject  at  her 
death. 

Now,  I  do  not  understand  that  any  one  contends,  and,  if  they  did, 
it  would  be  impossible  for  me  to  hold,  that  this  results  in  a  circulus 
inextricabilis,  an  unending  reference  from  one  court  to  another.  In 
my  opinion,  the  true  view  is  this :  The  question,  having  arisen  in  an 
English  court  primarily,  falls  to  be  decided  in  accordance  with  the 
law  administered  by  that  court.  That  law  distributes  movables  ac- 
cording to  the  domicile  at  the  death ;  and,  according  to  that  law,  every 
person  must  have  a  domicile  somewhere  or  other,  either  of  origin  or 
of  choice.  When  the  court  has  ascertained  that  the  domicile  of  origin 
has  been  displaced  by  a  domicile  of  choice,  distribution  of  movables 
follows  the  domicile  of  choice ;  but,  in  order  to  establish  a  new  domi- 
cile of  choice,  the  court  has  to  be  satisfied  that  it  has  been  adopted  /\b^ 
animo  et  facto — it  is  essential  that  there  should  be  both  animus  and  »uC  Vfl  ^  B^ 
factum.  When,  therefore,  the  law  of  the  land  said  to  be  chosen  as  '^  l''^  ,  \>»  *^ 
the  new  domicile  disregards  domicile,  and  declines  to  distribute  in  /  \P^^  ^ 
accordance  thei-ewith,  or  to  treat  it  as  of  any  force,  there  cannot 
been  any  change  of  domicile  de  facto;  and  the  case  is  accordi 
remitted  to  this  court  as  a  case  where  the  propositus  has  intended 
has  failed  to  obtain  an  effectual  domicile  of  choice.  No  change  is  ef-  / 
fectual  unless  the  factum  is  proved^  and  the  factum  cannot  exist  in  a/ 
country  where  the  law  refuses  to  recognize  it.  The  result  is  that  this 
court  must  conclude  that  a  domicile  of  choice,  ineffectual  to  create  any 
rights  and  liabilities  governing  the  distribution  of  movables  in  the 
country  supposed  to  have  been  chosen,  is  for  this  purpose  no  domicile 
at  all,  and  that  the  propositus,  therefore,  is  left  with  his  domicile  of 
origin  unaffected.  The  Baden  courts  would  in  eft"ect  have  disavowed 
him  and  disclaimed  jurisdiction.  This  appears  to  me  to  be  the  logical 
result  of  the  application  of  our  rules  respecting  domicile  and  to  be  in 
accordance  with  justice. 


ite  m    /   \J^       ^ 
have  /  ^jji^  '^y, 

d  but      /y^^ 


2G  GENERAL  PROVISIONS.  (Part  1 

It  is  argued  that  the  proper  course  is  to  remit  the  case  to  the  Ba- 
den courts,  leaving  them  to  say  what  their  law  would  do  with  the 
movables  of  the  propositus.  But  the  only  ground  on  which  the  ques- 
tion is  referred  to  them  at  all  is  by  reason  of  our  law  of  domicile. 
When  they  have  once  rejected  this,  they  have  rejected  the  propositus, 
and  all  claims  to  direct  the  distribution  of  his  movables  altogether — 
he  Is  a  mere  stranger  within  their  gates.  Why,  then,  should  this  court 
ask  their  assistance  when  the  only  ground  for  seeking  it  is  repudiated 
by  them?  Take  the  converse  case.  Suppose  that  the  Baden  courts 
were  distributing  the  movables  of  an  English  subject  whose  domicile  of 
birth  was  English,  but  who  would,  according  to  our  law,  have  acquired 
a  domicile  of  choice  in  Baden.  They  would  disregard  the  domicile 
altogether,  and,  if  they  treat  the  question  of  English  law  as  a  matter 
of  fact,  as  we  do,  on  which  evidence  must  be  adduced,  they  would 
distribute  the  movables  in  accordance  with  the  domicile  of  origin  of 
the  propositus  exactly  as  I  am  proposing  to  do  in  the  present  caiie. 
If,  on  the  other  hand,  they  regard  it  as  a  question  of  their  own  law 
and  not  of  fact,  as  M.  Labbe  appears  to  hold  in  regard  to  French  law 
(see  Journal  du  Droit  International  Prive,  1885,  p.  5),  and  there  is  a 
conflict  between  their  views  and  ours,  I  see  no  reason  why,  in  dis- 
tributing movables  under  the  jurisdiction  of  this  court,  we  should 
surrender  our  own  law  to  their  views  of  our  law  in  order  to  secure 
uniformity.  As  has  been  well  said  in  an  American  case  of  Hilton  v. 
Guyot,  quoted  in  Minor  on  Conflict  of  Laws,  p.  G :  "Comity  is  neither 
matter  of  absolute  obligation  nor  of  mere  courtesy  aind  good  will. 
It  is  the  recognition  which  one  nation  allows  within  its  territory  to 
the  legislative,  executive,  or  judicial  acts  of  another  nation,  having 
due  regard  both  to  international  duty  and  convenience  and  to  the 
rights  of  its  own  citizens  or  of  other  persons  who  are  under  the  pro- 
tection of  its  laws."  I  cannot  think  that  I  should  have  due  regard  to 
such  rights  if  I  were  to  abrogate  our  own  ordinary  rules  simply  for 
the  sake  of  securing  uniformity  with  the  views  taken  of  those  rules 
by  another  country.  If  the  movables  of  the  same  propositus  are 
distributed  amongst  different  persons,  according  as  the  court  direct- 
ing the  distribution  is  in  England  or  Baden,  the  reason  is  because  the 
two  systems  of  law  are  intrinsically  different,  and  can  only  be  recon- 
ciled by  international  treaty.  Story  on  the  Conflict  of  Laws,  §  28,  con- 
tains this  apposite  passage:  "There  is  indeed  great  truth  in  the  re- 
marks which  have  been  judicially  promulgated  on  this  subject  by  a 
learned  court  [the  Supreme  Court  of  Louisiana,  per  Porter,  J.,  Saul  v. 
His  Creditors,  5  Mart.  (N.  S.)  569,  595,  596,  16  Am.  Dec.  212]  :  'When 
so  many  men  of  great  talents  and  learning  are  thus  found  to  fail  in 
fixing  certain  principles,  we  are  forced  to  conclude  that  they  have  fail- 
ed, not  from  want  of  ability,  but  because  the  matter  was  not  suscep- 
tible of  being  settled  on  certain  principles.  They  have  attempted  to 
go  too  far,  to  define  and  fix  that,  which  cannot,  in  the  nature  of  things 
be  defined  and  fixed.     They  seem  to  have  forgotten  that  they  wrote 


Ch.  1)  NATUKE    OF   THE   SUBJECT.  27 

on  a  question  which  touched  the  comity  of  nations,  and  that  that  com- 
ity is,  and  ever  must  be,  uncertain ;  that  it  must  necessarily  depend  on 
a  variety  of  circumstances  which  cannot  be  reduced  to  any  certain  rule; 
that  no  nation  will  suffer  the  laws  of  another  to  interfere  with  her  own 
to  the  injury  of  her  citizens;  that  whether  they  do  or  not,  must  depend 
on  the  condition  of  the  country  in  which  the  foreign  law  is  sought  to 
be  enforced,  the  particular  nature  of  her  legislation,  her  policy,  and 
the  character  of  her  institutions ;  that  in  the  conflict  of  laws,  it  must 
often  be  a  matter  of  doubt  which  should  prevail;  and  that  whenever 
a  doubt  does  exist,  the  court  which  decides,  will  prefer  the  laws  of 
its  own  country  to  that  of  tlie  stranger.'  " 

But  in  the  particular  matter  with  which  I  have  to  deal  I  do  not  think 
that  any  great  divergence  must  necessarily  result.  It  is  not  for  me  to 
say  how  the  Baden  courts  would  interpret  their  rule  of  distributing 
according  to  nationality.  I  venture  to  think  that  this  does  not  and 
cannot  mean  that  they  regard  the  propositus  as  an  Englishman, 
wherever  his  domicile  of  origin  may  have  been,  but  that  they  distribute 
his  movables  in  the  same  way  that  the  English  courts  would  distribute 
the  movables,  not  of  any  Englishman,  but  of  the  particular  propositus, 
and  would  therefore  necessarily  have  regard  to  his  domicile  of  origin. 
This  would  be  in  accordance  with  the  comity  of  nations,  inasmuch  as 
ou*"  courts  defer  to  and  regard  their  laws  in  distributing  the  movables 
of  a  native  of  Baden  who  has  not  acquired  a  domicile  here,  and  would 
avoid  the  difficulties  to  which  I  shall  have  to  refer  further  presently. 
The  one  case  in  which  an  unavoidable  conflict  arises  appears  to  me  to 
be  that  of  a  native  subject  of  Baden  who  has  acquired  a  domicile  of 
choice  in  England.  If  and  so  far  as  this  court  distributes  his  mova- 
bles, they  would  be  distributed  according  to  our  law ;  but  if  and  so 
far  as  the  courts  in  Baden  distributed  them,  they  would  be  distributed 
in  accordance  with  Baden  law.  •  I  see  no.  way  to  avoid  this  except  by 
treaty,  nor  do  I  think  that  the  fact  that  in  the  converse  case  such  as  is 
now  before  me  we  distribute  our  own  subject's  movables  in  accordance 
with  our  law,  although  he  would  have  acquired  a  Baden  domicile  if 
it  were  possible,  is  any  breach  of  international  comity,  inasmuch  as 
we  make  this  distribution,  not  in  disregard  of  but  in  compliance  with 
Baden  law,  which  rejects  the  jurisdiction  over  the  movables  of  the 
propositus  that  we  oft'er  it.  Counsel  have  been  unable  to  refer  me 
to  any  decided  case  on  the  subject,  and  I  have  been  unable  to  find  any 
myself,  unless  the  Brown-Sequard  Case,  referred  to  in  the  Journal  du 
Droit  International  Prive,  1895,  vol.  XXII,  p.  427,  which  seems  to  be 
the  same  case  as  In  the  Goods  of  Brown-Sequard  (1894)  70  L.  T.  811, 
is  an  authority,  but  that  was  only  an  ex  parte  application.     *     *     * 

It  was  urged  in  argument  that  the  finding  in  the  certificate  is  that, 
according  to  the  law  of  Baden,  movables  are  to  be  distributed  accord- 
ing to  the  nationality  of  the  propositus.  I  have  already  given  my  rea- 
sons for  holding  that  the  Baden  courts  would  have  really  refused  juris- 
diction ;  but,  even  if  this  were  not  so,  I  should  arrive  at  the  same  con- 


28  GENKRAL  PROVISIONS.  (Part  1 

elusion  in  a  different  way.  When  it  is  said  that  the  Baden  courts  re- 
gard the  nationahty  of  the  propositus,  I  apprehend  that  this  means  that 
they  distribute  according  to  the  law  of  the  nation  to  which  the  proposi- 
tus belongs,  or  in  other  words,  of  which  he  is  a  subject.  But  the  British 
Empire  consists  of  a  large  number  of  states,  countries,  and  colonies, 
and  differs  from  continental  nations  in  that  it  does  not  impose  its  own 
laws  wherever  its  sway  extends,  but  admits  many  different  systems  of 
law  within  its  bounds.  There  is  no  one  uniform  law  of  this  empire 
which  can  be  taken  for  this  purpose  as  the  law  of  the  nationality  of 
the  propositus.  To  what  nationality,  then,  does  the  propositus  belong, 
or  of  whom  is  he  a  subject?  The  only  possible  answer  appears  to  me 
to  be  that  he  is  a  subject  of  the  British  Crown  and  that  his  nationahty 
is  the  British  Empire.  But  inasmuch  as  there  is  no  one  law  of  the 
empire  to  which  the  rule  in  question  can  refer,  resort  must  be  had  to 
the  law  of  England.  The  first  proposition  seems  to  be  clear.  Wheth- 
er born  in  England,  Scotland,  Canada,  Cape  Colony,  or  the  Channel 
Islands,  or  elsewhere  within  the  empire,  he  is  a  natural-born  subject 
of  the  crown,  and,  as  Calvin's  Case,  7  Rep.  *27b,  shows,  the  crown  is 
one  and  indivisible,  and  cannot  be  severed  into  as  many  distinct  king- 
ships as  there  are  kingdoms ;  and  even  if  it  could,  how  is  it  possible 
to  determine  what  is  a  distinct  kingdom?  Even  if  India  or  some  of 
our  great  colonies  could  lay  some  claim  to  be  so  considered,  how  could 
the  Isle  of  Man,  or,  indeed,  Scotland,  since  the  Act  of  Union  ?  But  to 
admit  that  either  of  these  latter  must  be  treated  as  one  with  England 
would  let  in  all  the  inconveniences  which  have  been  pointed  out  in 
argument,  and  would,  moreover,  create  an  extraordinary  anomaly.  I 
base  my  decision  on  principle  and  on  considerations  of  policy  and  con- 
venience. "Allegiance  is  the  tie,  or  ligamen,  which  binds  the  subject 
to  the  king,  in  return  for  that  protection  which  the  king  affords  the 
subject."  1  Blackst.  354.  As  is  said  in  Calvin's  Case,  7  Rep.  *5 : 
"Protectio  trahit  subjectionem  et  subjectio  protectionem."  It  is  admit- 
ted that  it  is  the  same  thing  for  this  purpose  to  say  that  the  proposi- 
tus is  the  subject  of  X.,  as  to  say  that  he  belongs  to  the  nationality 
of  X.  I  see  no  way  in  which  the  propositus  can  claim  to  belong 
to  a  separate  part  of  the  king's  dominions  or  to  a  separate  nation- 
ality without  denying  allegiance  to  the  king  as  supreme  over  the  whole 
empire  as  one  empire.  The  point  appears  to  me  to  be  involved  in, 
and  to  be  decided  by,  Calvin's  Case.  Although  there  were  at  that 
time — James  Ts  reign — two  distinct  kingdoms  of  England  and 
Scotland,  each  with  its  own  code  of  laws,  it  was  resolved  by  the  Lord 
Chancellor  and  twelve  judges  that  there  was  but  one  allegiance  to  one 
king,  and  therefore  that  a  Scottish-born  subject  of  the  king  was  no 
alien  in  England.  To  quote  the  resolution  at  page  10a  of  the  report : 
"Ligeantia  naturalis  nullis  claustris  coercetur,  nullis  metis  refraenatur, 
nullis  finibus  premitur."  And  consistently  with  this  we  find  that  when 
the  East  India  Company  was  abolished  by  St.  21  &  22  Vict.  c.  lOG, 
it  was  enacted  (section  2):     "India  shall  be  governed  by  and  in  the 


Ch.  1)  NATURE   OF   THE   SUBJECT.  29 

name  of  Her  Majesty."  So,  too,  the  sanction,  either  express  or  im- 
pHed,  of  the  crown,  is  required  for  the  vaUdity  of  the  acts  of  all 
colonial  Legislatures.  Dicey  on  the  Law  of  the  Constitution  (3d  Ed.) 
p.  98. 

Turning-  from  principle  to  policy  and  convenience,  how  is  the  foreign 
court  to  ascertain  what  law  of  what  part  of  the  British  Empire  is  to 
apply?  Foreign  states  are  in  diplomatic  relation  with  this  country 
as  representing  the  whole  empire.  They  know  nothing  officially  of 
Scotland  or  Canada,  or  the  colonies,  still  less,  perhaps,  of  the  Channel 
Islands  or  the  Isle  of  Man.  It  would  surely  be  a  task  of  difficulty  and 
delicacy  for  them  to  discriminate  and  determine  judicially  that  Canada 
(for  instance)  or  the  Cape  is  a  distinct  nationality.  Indeed,  in  some 
circumstances,  in  some  states  of  public  feeling,  such  a  determination 
might  come  perilously  near  to  an  unfriendly  act.  Further,  unless  a 
novel  and  hitherto  unheard  of  definition  of  nationality  is  adopted, 
whereby  every  country  within  the  empire  that  has  a  distinct  set  of 
laws  is  treated  as  a  separate  nationality  (an  impossible  course,  in  my 
opinion),  the  foreign  court  has  no  data  to  guide  it  in  determining  what 
is  a  nationality.  Does  it  depend  on  area,  or  population,  or  wealth? 
And  how  is  any  uniformity  of  opinion  on  the  point,  amongst  foreign 
courts,  to  be  secured?  Again,  what  nationality  at  his  death  can  a 
court  which  ignores  domicile  attribute  to  a  man  born  in  Scotland  who 
makes  his  home  and  fortune  at  the  Cape  and  dies  in  England?  These 
are  practical  difficulties  which  appear  to  me  overwhelming.  Further, 
the  object  aimed  at  would  not  be  attained,  at  any  rate,  in  the  very 
case  put  forward  in  argument — namely,  of  Scotland.  It  was  said  to 
be  hard  on  a  Scotchman  that  his  estate  should  be  dealt  with  under 
English  law.  But  whatever  might  be  said  of  some  of  the  colonies, 
I  fail  to  see  how  any  court  could  hold  that  Scotland  is  a  distinct 
nationality  in  the  face  of  the  Act  of  Union  (St.  6  Anne,  c.  11,  §  1): 
"That  the  two  kingdoms  of  England  and  Scotland  shall  be  upon  the 
first  day  of  May,  1707,  and  for  ever  after  be  tmited  into  one  kingdom." 
So  the  Isle  of  Man,  though  retaining  its  own  laws,  was  purchased  in 
the  reign  of  George  III,  and  by  St.  5  Geo.  Ill,  c.  26,  was  inalienably 
vested  in  His  Majesty  and  his  heirs  and  successors.  Indeed,  I  incline 
to  think  that  the  only  part  of  the  British  Empire  which  could  with  any 
plausibility  claim  to  be  regarded  as  a  separate  nationality  if  allegiance 
to  the  crown  would  permit  it — is  the  Channel  Islands,  being  part  and 
parcel  of  the  Duchy  of  Normandy  and  described  in  Calvin's  Case  as 
"no  parcel  of  the  realm  of  England  but  several  dominions  enjoyed  by 
several  titles  governed  by  several  laws."  The  only  possible  solution 
appears  to  me  to  be  that  foreign  courts  must  necessarily  refer  such 
questions  as  these  to  and  decide  them  according  to  the  law  of  the 
country  with  which  alone  they  are  in  diplomatic  relation;  and  in- 
asmuch as  the  law  of  England  distributes  such  movables  in  accordance 
with  domicile  of  origin  substantial  justice  is  done  to  all  His  Majesty's 
subjects,  and  the  born  Scotchman  will  not,  any  more  than  the  Cape  of 


30  GENERAL  PROVISIONS.  (Part  1 

Good  Hope  colonist  or  Jerseyman,  be  deemed  to  have  become  an 
Englishman  or  to  have  given  up  that  domicile  of  origin  with  its  at- 
tendant laws,  to  which,  according  to  counsel's  argument,  he  is  so 
deeply  attached,  although  in  the  particular  case  he  had  done  all  that 
in  him  lay  to  change  it  for  another.  I  conclude,  therefore,  that  dis- 
tribution according  to  the  law  of  the  nationality  means  according  to 
English  law,  but  according  to  that  law  as  applicable  to  the  particular 
propositus,  and  not  to  Englishn^en  generally  without  regard  to  their 
domicile  of  origin.  The  testatrix  in  this  case  is  found  by  the  certifi- 
cate to  have  been  born  a  subject  of  the  British  Crown  and  to  have 
had  her  domicile  of  origin  in  Malta.  Her  movables,  therefore,  will  be 
distributed  amongst  the  persons  who  would  be  entitled  thereto  accord- 
ing to  Maltese  law.^° 

10  Accord :  lu  re  Bowes,  22  T.  L.  R.  711  (Cla.  D.  190G).  See  Harral  v.  Har- 
ral,  39  N.  J.  Eq.  279,  51  Am.  Rep.  17  (1884). 

Continental,  Law. — The  "renvoi"  doctrine  bas  been  applied  frequently  In 
France  since  the  Forsjo  Case  (Cass.  June  24,  1878,  D.  1879,  1,  56).  See  Cass. 
Feb.  22.  1882  (S.  1882,  1,  393),  and  note  by  J.  E.  Labbe ;  App.  Toulouse,  May 
22,  ISSO  (D.  1881,  2,  93);  App.  Douai.  Feb.  2,  1899  (26  dunet,  825);  App. 
Aix,  July  19,  1906  (34  Clunet,  152).  It  has  been  rejected  in  recent  years 
in  a  number  of  decisions  by  the  lower  courts.  See  App.  Paris,  Aug.  1,  1905. 
(D.  1906,  2,  169);  App.  Rouen,  June  30,  1897  (2  Darras,  511);  Trib.  Civ. 
Seine,  Feb.  10,  1893  (20  Clunet,  530);  App.  Pau,  June  11,  1906  (D.  1907, 
2,  1),  and  note  by  A.  Colin. 

It  has  obtained  no  foothold  in  Italy.  Cass.  Rome,  Jan.  5,  1906,  and  Pujme, 
Dec.  1,  1906  (34  Clunet,  1205). 

In  Germany  it  has  been  recognized  expressly  by  the  Civil  Code  with  re- 
spect to  capacity,  marriage,  matrimonial  property,  divorce,  and  succession, 
provided  the  foreign  law  refers  back  to  German  law.  Article  27,  Law  Intr. 
Civ.  Code.  According  to  article  28  it  is  inapplicable,  however,  to  property 
in  a  third  state  where  different  rules  prevail. 

The  renvoi  doctrine  was  rejected  by  the  Institute  of  International  Law  at 
its  session  at  Neuchatel  in  1900  by  a  vote  of  21  to  6  (v.  Bar,  Brusa,  Har- 
bux'ger,  Roguin,  Weiss,  and  Westlake  voting  in  its  favor).  See  Annuaire 
de  rinstitut  de  Droit  International,  vol.  XVIII,  145-176.  It  is  sanctioned, 
on  the  other  hand,  by  article  1  of  the  Convention  of  the  Hague  of  June  12, 
1902,  relating  to  marriage  ("il  moins  qu'une  disposition  de  cette  loi  ne  se 
refere  expressement  a  une  autre  loi").     See  Appendix,  A,  I. 

See  also,  20  Harv.  Law  Rev.  226  ;  Westlake,  Priv.  Int.  Law,  25-40,  326 ;  Dicey, 
Conflict  of  Laws,  715-723 ;  Edwin  H.  Abbot,  Jr.,  Is  the  Renvoi  a  Part  of  the 
Common  Law?  24  Law  Quar.  Rev.  133-146;  John  P.  Bate,  Notes  on  the  Doc- 
trine of  Renvoi  in  Private  International  Law,  London,  1904;  T.  M.  C  Asser, 
Quelques  observations  concernant  la  theorie  ou  le  systeme  du  renvoi,  32  Clunet, 
40-43 ;  V.  Bar,  Die  Riickverweisung  im  Internationaleu  Privatrecht,  8  Niemey- 
er,  177-188;  G.  C.  Buzzati,  Nochmals  die  Riickverweisung  im  Internationalen 
Privatrecht,  8  Niemeyer,  449-456  :  G.  C.  Buzzati,  Die  Frage  der  Riickverweisung 
vor  dera  "Institut  de  Droit  International,"  11  Niemeyer,  3-15 ;  P.  Fiore,  Du 
conflit  entre  les  dispositions  lOgislatlves  de  droit  international  prive  (Theorie 
de  renvoi),  28  Clunet,  424-442.  081-704 ;  J.  Klein,  Die  Riick-  und  Weiterver- 
weisung  im  Internationalen  Privatrecht,  27  Archiv  fiir  biirgerliches  Recht. 
252-282 ;  J.  .E.  Labbe,  Du  conflit  entre  la  loi  nationale  du  juge  saisi  et 
une  loi  eti'angere  relativement  il  la  determination  de  la  loi  applicale  a  la 
cause,  12  Clunet,  5-16;  A.  Laine,  La  theorie  du  renvoi  en  droit  international 
priv6,  2  Darras,  605-643 ;  3  Darras,  43-72,  313-339,  661-674 ;  4  Darras,  729-758 ; 
.Maurice  Ligeoix,  La  theorie  du  renvoi  et  la  natui'e  juridique  des  regies  de 
droit  international  priv6,  .30  Clunet,  481-498;  31  Clunet,  551-567;  J.  T.  B. 
Sewell,  Du  renvoi  d'apres  la  jurisprudence  anglaise  en  mati6re  de  successioa 
mobiliCre,  3  Darras,  507-524. 


Ch.  2)  PENAL   LAWS. 

CHAPTER  II. 

PENAL  LAWS. 


BLAINE  V.  CURTIS. 

(Supreme  Court  of  Vermont,  1887.    59  Vt.  120,  7  Atl.  708,  59  Am.  Rep.  702.) 

Action  of  debt  to  recover  the  penalty  given  by  the  statute  of  New 
Hampshire  for  taking  usury. 

Walker,  J.  The  case  comes  before  us  upon  general  demurrer  to 
the  declaration,  and  the  only^  question  to  be  decided  is  whether  the 
forfeituTeJinposed-hyLthe  laws  of  New  Hampshire  upon  a  persgn^re- 
ceiving  interest  at  a  higher  rate  than  6  per  cent,  may  be  enforced^^by 
an  action  of  debt,  in  favor  of  the  person  aggrieved,  in  this  state.  The 
provisions  of  the  statute,  which  are  substantially  set  out  in  the  declara- 
tion, are  as  follows:  "If  any  person,  upon  any  contract,  receives  in- 
terest at  a  higher  rate  than  6  per  cent.,  he  shall  forfeit  three  times  the 
sum  so  received  in  excess  of  said  6  per  cent,  to  the  person  aggrieved 
who  will  sue  therefor." 

It  is  alleged,  in  substance,  in  the  declaration,  that  the  defendant,  at 
Piermont,  in  the  state  of  New  Hampshire,  received  upon  a  promissory 
note  for  the  sum  of  $1,500,  then  held  by  the  defendant  and  owing  b\' 
the  plaintiff  to  her,  $30  interest  in  excess  of  6  per  cent,  from  the 
plaintiff'  on  the  first  day  of  May  in  each  year  for  six  years,  beginning 
with  ]\lay,  1876,  and  ending  wdth  May,  1882 ;  making  $180  thus  re- 
ceived by  the  defendant  of  the  plaintiff  in  excess  of  6  per  cent,  interest 
during  the  years  named.  It  is  also  alleged  that,  by  virtue  of  the  stat- 
ute of  New  Hampshire  aforesaid,  an  action  hath  accrued  to  the  plain- 
tiff to  recover  of  the  defendant  three  times  the  excess  of  6  per  cent, 
interest  so  paid. 

The  case  stated  comes  within  the  statute  declared  upon,  and,  if  the 
suit  had  been  instituted  in  New  Hampshire,  there  could  be  no  doubt 
of  the  right  of  the  plaintiff  to  recover,  if  the  action  is  not  barred  in 
that  state  by  the  statute  of  limitations.  The  question  here  is,  can  the 
liability  imposed  by  the  statute  be  enforced  out  of  the  limits  of  New 
Hampshire?  This  must  depend  on  the  nature  of  the  liability,  and  the 
manner  in  which  it  is  created.  It  is  not  a  responsibility  ex  contractu ; 
and  the  question  arises,  is  it  a  liability  imposed  by  the  statute  upon  a 
person  receiving  illegal  interest  for  a  violation  of  its  provisions,  and 
penal  in  its  nature,  or  is  it  a  statute  declaratory  of  a  common-law  right, 
and  a  means  or  way  enacted  for  enforcing  it,  and  therefore  remedial 
in  its  nature? 


0>^<, 


32  GENERAL  PROVISIONS.  (Part  1 

Qr<y        J     If  it  only  gave  a  remedy  for  an  injury  against  the  person  by  whom 
yit  is  committed  to  tTie  person  injured,  and  Hmited  the  recovery  to  the 
/  pgre  amount  of  loss  sustained,  or  to  cumulative  damages  as  compen- 
I   sation  for  the  injury  sustaiifeH^  it  would  fall  within  the  class  of  remedial 
\  statutes.     1  Bl.  Comm.  86 ;  Lake  v.  Smith,  1  Bos.  &  P.  (N.  R.)  179, 
180 ;  Woodgate  v.  Knatchbull,  2  Term  R.  154,  155,  note ;  Pinkney  v. 
Rutland  Co.,  2  Saund.  376,  note  7;  Shore  v.  Madisten,  1  Salk.  206; 
Boice  V.  Gibbons,  8  N.  J.  Law,  324 ;  Burnett  v.  Ward,  42  Vt.  80. 
^/f-f^        But  this  statute  does  not  limit  the  recovery^to  the  mere  amount  of 
1^^  o^\^       the  loss  sustained,  orjTo  cumulative  damages  as   compens^ion;     It 
rr^^  g~oesT)eyond^  and  inflicts  a  punishment  Upoh  ~fhe"offender.     It  makes 

the  taking  of  illegal  interest  an  offense,  and  prescribes  a  penalty  of 
three  times  the  amount  of  illegal  interest  taken.  The  right  of  action 
under  it  does  not  arise  out  of  any  privity  existing  between  the  person 
paying  and  the  person  receiving  the  illegal  interest,  but  is  derived  en- 
tirely from  the  statute.  The  action  given  is  not  to  recover  back  money 
that  the  person  receiving  had  no  lawful  right  to  take  and  hold  against 
the  person  paying  it,  but  one  to  recover  a  penalty  for  a  breach  of  a 
statute  law,  and  founded_entirely  upon  the  statute  Jmposing  the  for- 
feiture. 

It  was  held  in  Hubbell  v.  Gale,  3  Vt.  266,  that  whatever  may  be 
the  form  of  the  action,  if  it  is  founded  entirely  upon  a  statute,  and 
the  object  of  it  is  to  recover  a  penalty  or  forfeiture,  it  is  a  penal 
action.  We  think  the  liability  created  by  the  statute  declared  upon 
■  is  clearly  a  statutory  one,  imposed  upon  the  person  receiving  illegal 
interest  as  a  wrongdoer,  and  penal  in  its  nature. 

This  view  is  supported  by  the  decisions  of  many  courts  of  last  re- 
sort, some  of  which  have  been  cited  in  the  argument.  We  refer, 
however,  only  to  a  decision  of  the  Supreme  Court  of  the  United  States 
in  a  case  analogous  to  the  case  at  bar.  The  provisions  of  the  act  in 
question  are  similar  to  the  provisions  of  the  national  currency  act  of 
Congress,  approved  June  3,  1864,  which  provides  that,  if  unlawful 
interest  is  received  by  any  banking  association  created  by  it,  the  person 
or  persons  paying  the  same,  or  their  legal  representatives  may  recover 
back,  in  an  action  of  debt,  twice  the  amount  of  interest  thus  paid 
from  the  association  taking  or  receiving  the  same.  This  provision  of 
the  currency  act  referred  to  came  up  for  consideration  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  Barnet  v.  IMuncie  Nat.  Bank, 
^^  98  U    S^55,  25  L.  Ed.  212,  where  the  plaintiff^irf  erroFsougliTto 

t»  C*>^*^_^Q^       SvairTiimielf  of  the  BeneHt  of  the  act  in  his  defense,  by  way  of  offset 
iM^  •     Y^l)"      and  counterclaim  to  the  bill  of  exchange  on  which  the  suit  was  brought. 
^^^^\.    M^  *^        Justice  Swayne,  in  delivering  the  opinion  of  the  court,  denied  the  relief 
^^  ^^^  *  vA  sought,  and  said :     "The  remedy  given  by  the  statute  for  the  wrong- 

^       is  a  penal  suit.     To  that  the  party  aggrieved,  or  his  legal  representa- 
tive, must  resort.     He  can  have  redress  in  no  other  mode  or  form 


ov:' 


W^'^JlI'N*      ^f/f'   of  procedure.     The  statute  which  gives  the  right  prescribes  the  re- 


'^^"'Ch^T'^y 


Ch.  2) 


PENAL  LAWS. 


33 


dress.  The  suit  must  be  brought  especially  to  recover  the  penalty, 
where  the  sole  question  is  the  guilt  or  innocence  of  the  accused." 

This  statute  has  been  repeatedly  under  consideration  by  the  Supreme 
Court  of  the  state  of  New  Hampshire,  and  has  been  by  that  court 
invariably  treated  as  a  penal  statute.  Harper  v.  Bowman,  3  N.  H.  489, 
was  an  action  to  recover  a  forfeiture  of  three  times  the  illegal  interest 
paid.  It  was  objected  that  some  part  of  the  penalty  was  barred  by 
the  statute  of  limitations,  and  the  court  in  considering  the  question 
held  that  the  act  limiting  suits  on  penal  statutes,  which  provides  that 
actions  upon  any  penal  statute  shall  be  brought  within  one  year  from 
the  time  of  committing  the  offense,  was  controlling  in  the  decision  of 
the  question  raised. 

In  Kempton  v.  Sullivan  Sav.  Institution,  53  N.  H.  581,  the  court 
treated  the  statute  as  a  penal  one,  in  an  able  opinion  upon  its  construc- 
tion, and  rules  of  pleading  applicable  to  actions  brought  upon  it.  This 
construction,  which  has  been  given  to  the  statute  by  the  Supreme  Court 
of  the  state  in  which  it  was  enacted,  treating  and  holding  it  a  penal 
statute,  should  be  followed,  and  is  controlling,  in  courts  of  this  state. 
Hunt  V.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129;  Leonard  v.  Columbia 
Steam  Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491. 

It  is  well  settled  that  no  state  will  enforce  penalties  imposed  by  the 
laws  of  another  state.  Suchlaws  are  "universally  considered  as  havmg 
no  ~exFra-territoTiaT~t)peration  or  effect,  whether  the  penalty  be  to  the 
public  or  to  persons.  They  are  strictly  local,  and  effect  nothing  more 
than  they  can  reach  within  the  limits  of  the  state  in  which  they  were 
enacted.  They  cannot  be  enforced  in  the  courts  of  another  state, 
either  by  force  of  the  statute,  or  upon  the  principles  of  state  comity, 
Story.  Confl.  Laws,  §§  620,  621;  Ror.  Int.  St.  Law,  148,  165;  Ogden 
V.  Folliot,  3  Term  R.  733 ;  Scoville  v.  Canfield,  14  Johns.  338,  7  Am. 
Dec.  467 ;  First  Nat.  Bank  of  Plymouth  v.  Price,  33  Md.  487,  3  Am. 
Rep.  204 ;  Demcksonjy,  Sniith^^^  J.  Law,  166  ;  Barnes  v.  Whitaker, 
22  111.  606 ;  ShermarTv.  Gassett,  9  111.  521;  Henrv  v.  Sargeant,  13  N. 
H.  321,  40  Am.  Dec.  146;  Slack  v.  Gibbs,  14  Vt.  357. 

Actions  for  the  recovery  of  a  penalty  or  forfeiture,  given  by  laws  of 
one  state  upon  usurious  contracts  made  and  entered  into  in  such  state, 
will  not  lie  in  another  state.  Such  laws  are  held  to  be  penal  in  their 
nature,  and  governed  by  the  general  rule  that  they  have  no  extra- 
territorial force,  and  can  be  enforced  only  by  the  courts  of  the  state 
in  which  they  are  enacted.  Ror.  Int.  St.  Law,  165 ;  Barnes  v.  Whit- 
aker, 22  111.  606;  Sherman  v.  Gassett,  9  111.  521. 

The  judgment  of  the  county  court  sustaining  the  demurrer,  and  ad- 
judging the  declaration  insufficient,  was  correct,  and  is  affirmed. 

LOB.CONF.L.— 3 


yM±:^li^^s^ 


34  GENERAL  PROVISIONS.  (Part  1 


1jo/^''''*'''^(^ 


ARNOLD  V.  POTTER. 

(Supreme  Court  of  Iowa,  1867.    22  Iowa,  194.) 


^ 


Ir   "^  Wright^  J.^'     *     *     *     What  was  the  contract  between  these  par- 

^^ll>*^^^  ^       ties  was  a  question  for  the  jury  to  determine.     Appellant  denies  the 

^^^   r^^_*^p(l.    *    position  assumed  by  appellee,  and  insists  that  this  was  a  contract  made 

yf^  ^S^^^  in  Massachusetts,  payalile  in  New  York,  and  that  there  was  no  agree- 

y/JJt^   g^^i^y-C^^  ment  beyond  what  appears  upon  the  face  of  the  notes;  and  assuming 

(y^\^ Ayf'^^J  that  the  contract  might  be  governed  by  the  law  of  Massachusetts,  the 

g      i^  /^^^  ^  appellee  asked  and  the  court  gave  this  instruction :     "This  court  will 

X^^^^^jT'   tA/r^'^Or\.  enforce  the  penal  statute  of  another  state  relating  to  usury,  when 

w  ^^\^ Ai^      J^    t^^^^  statute  does  not  make  the  contract  wholly  void;  and,  therefore,  the 

\M-       jXr^       statute  of  Massachusetts  is  not  to  be  considered  by  the  jury."     In  this 

.    ^  "i  respect,  as  intimated  in  the  commencement  of  this  opinion,  the  court 

\^J*  below  erred. 

"   '  The  statute  of  Massachusetts  (Rev.  St.  1836,  c.  35,  §  2)  fixes  tha 

rate  of  interest  at  six  per  cent.  "If  more  is  reserved,  the  contract  is 
not  void,  but  the  defendant  recovers  full  costs  and  plaintiff  forfeits 
threefold  the  amount  of  the  whole  interest  reserved,  and  shall  have 
judgmeiit  for  the  balance  only,  which  shall  remain  due  after  deduct- 
ing the  threefold  amount." 

Now,  we  do  not  controvert  appellee's  proposition  that  our  courts  will 
not  enforce  the  penal  statutes  of  another  state.  The  error  is  in  the 
conclusion  based  upon  such  proposition,  that,  therefore,  this  statute 
of  Massachusetts  will  not  be  enforced,  if  the  contract  falls  within  its 
provisions.  Some  cases  are  relied  upon  by  counsel  to  which  we  first 
direct  attention.  Gale  v.  Eastman,  7  Mete.  (Mass.)  14,  was  expressly 
ruled  upon  the  ground  that  the  law  of  New  Hampshire,  where  the 
contract  was  made,  peculiarly  related  to  the  remedy,  and  could  not 
be  enforced  in  Massachusetts.  But,  aside  from  the  proposition  that 
the  remedy  provided  could  only  extend  to  suits  brought  in  New  Hamp- 
shire, there  is  nothing  remotely  bearing  upon  the  question  now 
before  us. 

There  is  no  intimation  that  the  court  refused  to  act,  because  the 
law  of  the  place  of  the  contract  was  penal ;  and  the  same  remark  is 
applicable  to  Wright  v.  Bartlett,  43  N.  H.  548.  Scoville  v.  Canfield, 
14  Johns.  338,  7  Am.  Dec.  467,  decides  nothing  more,  except  so  far  as 
it  states  the  admitted  proposition  that  the  penal  laws  of  one  state  could 
have  no  operation  in  another,  that  such  laws  are  strictly  local,  and 
affect  nothing  more  than  they  can  reach.  De  Wolf  v.  Johnson,  10 
Wheat.  (U.  S.)  367,  6  L.  Ed.  343,  touches  the  point  here  made,  very 
remotely,  if  at  all.  It  certainly  does  not  go  to  the  extent  claimed 
by  the  appellee.  On  the  contrary,  there  is  much  in  it  to  favor  the 
opposite  view.     Sherman  v.  Gassett,  4  Gilman  (111.)  521,  is  more  in 

1  Only  a  part  of  the  opinion  is  given.         , 


Ch.  2)  PENAL   LAWS.  35 

point.  It  was  decided  by  a  divided  court,  Lockwood,  J.,  delivering  the 
opinion  of  six  of  the  judges,  and  Kermer,  J.,  the  dissenting  opinion  of 
the  other  three.  We  do  not  propose  to  examine  it  at  length.  The 
argument  of  the  majority  of  the  court  strikes  us  as  being  based  upon 
improper  assumptions,  and  is  equally  inconclusive  in  its  reasoning; 
and  most  pertinently  does  the  dissenting  opinion  dispose  of  the  whole, 
argument,  by  saying:  "To  maintain  that  we  are  bound  to  declare  a 
usurious  contract  wholly  void,  when  the  laws  of  the  place  of  contract 
make  it  so,  whereby  the  creditor  is  deprived  of  the  whole  of  his  claim, 
but  that  we  are  not  bound  to  regard  the  law  when  it  provides  for  a 
forfeiture  only  by  which  the  creditor  loses  but  a  part  of  his  claim, 
seems  to  involve  a  singular  inconsistency.  It,  in  other  words,  involves 
the  following  remarkable  syllogism:  'The  law  everywhere  avoids 
usurious  contracts,  when  they  are  declared  wholly  void  by  the  law  of 
the  place.  This  contract  was  void  in  part,  and  consequently  it  is  good 
in  whole.' " 

But  a  more  conclusive  answer  to  the  case  is  found  in  Barnes  v. 
Whitaker,  22  111.  606,  where  the  Supreme  Court  of  that  state  enforced 
the  statute  of  this  state  upon  a  contract  made  here,  so  far  as  it  declares 
that  plaintiff  shall  have  judgment  for  the  principal  sum,  without  either 
interest  or  costs.  They  refused,  of  course,  to  adjudge  the  penalty 
of  ten  per  cent,  to  the  school  fund;  but  the  right  of  the  defendant 
to  insist  upon  the  enforcement  of  our  statute  in  the  other  respect,  is 
maintained  by  an  argument  strong  and  unanswerable:  "It  is  admit- 
ted," says  the  Chief  Justice,  in  summing  up,  "that  such  would  be  the 
effect  of  this  law  if  it  had  declared  that  plaintiff  should  have  judgment 
for  nothing.  How  much  more  so,  in  common  sense,  when  it  (only) 
allowed  him  to  take  judgment  for  the  principal  sum  borrowed. 

"The  distinction  in  the  two  cases  is  not  only  without  reason,  but 
is  against  all  reason,  and  all  sound  law  and  the  philosophy  of  the 
law." 

Now,  upon  principle,  why  is  not  this  case  in  point?  Our  law  says 
plaintiff  shall  have  judgment  for  the  principal  sum  without  interest 
or  costs.  The  Massachusetts  statute  is,  that  he  shall  have  judgment 
for  the  balance  only,  which  shall  remain  after  deducting  the  threefold 
amount.  In  neither  case  is  there  a  criminal  law  to  enforce  a  penal 
statute  having  operation  beyond  the  limits  of  the  state  enacting  it. 
The  legal  effect  of  the  contracts  could  not  be  different  in  different 
states,  and  it  is  according  to  this  legal  effect  that  all  courts  are  bound 
to  enforce  them. 

If  the  law  affixed  a  penalty,  and  the  defendant  was  in  this  case 
seeking  to  collect  it,  or  if,  as  under  our  statute,  the  defendant  forfeited 
a  certain  amount  to  the  school  or  other  fund,  and  we  were  asked  to" 
declare  the  same,  we  would  have  cases  to  which  the  instructions  in 
question  would  apply.  Is  forfeiture  the  same  as  penalty  in  this  con- 
nection? This  is  easily  answered.  If  the  law  attaches  a  penalty,  as 
the  consequence  of  an  act,  it  may  be  sued  for  and  recovered :  but  it  wTIT 


(StSi  t 


i^ 


H 


36  GENERAL  PROVISIONS.  (Part  1 

be  enforced  aIone_ULjJig_jtate_declaring_JJi£_^^ 

^hangr'aTpeJ-son's  property  may  be  forfeited  ^r  lost  by  some  fault  or_ 
offense^_the  forfeiture  is  not  enforced  except  in  the  prosecution~^Qr 
the  fault  or  offense ;  and,  if  the  party  guilty  of  the  fault  seeks  to  en,- 
force  the  contract  wlij^hTTeTias  obtained  asthe  f  ruitsof  such  offense , 
"gejcan  take  no  part  of  the  forjgiture.  And  when~Ee^eclares  and 
seeks  to  recover  upon  sucE~a~contract,  in  another  state,  if  the  courts 
of  that  state  hold  that  his  contract  shall  be  carried  out  as  interpreted 
by  the  laws  of  the  state  where  made,  they  inflict  upon  him  no  penalty, 
they  are  not  enforcing  the  penal  laws  of  another  state,  but  enforce  the 
^statute  of  the  sister  state  so  far  as  it  effects  a  discharge  of  the  claim. 
Gambhng  ispunished  by"our  statute,  and  a  gambling  contract  is  void. 
Suppose  our  laws  declared  that  a  party  holding  such  a  contract  might 
recover  one-half  and  no  more.  Now,  the  penalty,  the  penal  statute, 
would  not  be  enforced  in  another  state;  but,  in  an  action  upon  the 
contract  there,  the  holder  would  be  limited  in  his  recovery  to  the 
one-half.  The  Massachusetts  statute  not  only  uses  the  word  "forfeit," 
but  says  the  plaintiff  shall  only  have  judgment  for  so  much;  thus  un- 
mistakably keeping  up  the  distinction  between  a  law  of  this  kind  and 
one  penal  in  its  nature.     *     *     * 


A^  li^^^^yA^^  ADAMS  v.  FITCHBURG  R.  CO. 

)^  .  *'^  tj<t^  (Supreme  Court  of  Vera 


■:Z^ 


Vermont,  1894.    67  Vt.  76,  30  Atl.  687,  48  Am.  St.  Rep.  800.) 

Action  on  the  case.  Heard  upon  demurrer  to  the  plaintiff's  declara- 
tion, at  the  March  term,  1894,  Windham  county;  Ross,  C.  J.,  presid- 
ing. Judgment  sustaining  the  demurrer,  and  for  the  defendant.  The 
plaintiff  excepts. 

The  plaintiff  brought  suit,  as  the  administratrix  of  one  L/.  C.  Adams, 
alleging  that  the  defendant  was  a  railroad  corporation  operating  a 
railroad  in  the  state  of  Massachusetts,  and  that  her  intestate,  while  a 
passenger  upon  said  railroad  in  that  state,  had  been  killed  by  the  negli- 
ligence  of  the  defendant,  and  without  fault  upon  his  part;  and  that 
she  thereby  became  entitled  to  an  action  in  virtue  of  chapter  112,  § 
212,  of  the  Public  Statutes  of  Massachusetts,  which  she  alleged  was 
in  substance  as  follows:  "If  by  reason  of  negligence  or  carelessness 
of  a  corporation  operating  a  railroad  or  street  railway  or  the  unfitness 
or  gross  negligence  or  carelessness  of  its  servants  or  agents  while 
engaged  in  its  business  the  life  of  a  passenger  or  of  a  person  being  in 
the  exercise  of  due  diligence  and  not  a  passenger  or  in  the  employ- 
ment of  such  corporation  is  lost,  the  corporation  shall  be  punished 
by  fine  of  not  less  than  five  hundred  dollars  or  more  than  five  thousand 
dollars  to  be  recovered  by  indictment  prosecuted  within  one  year  from 
the  time  of  the  injury  causing  the  death  and  paid  to  the  executor  or 


^ 


Ch.  2)  PENAL   LAWS.  37 

administrator  for  the  use  of  the  widow  and  children  of  the  deceased 
in  equal  moieties;  or  if  there  are  no  children  to  the  use  of  the  widow, 
or  if  no  widow  to  the  use  of  the  next  of  kin,  but  a  corporation  operat- 
ing a  railroad  shall  not  be  so  liable  for  the  loss  of  life  by  a  person  while 
walking  or  being  upon  its  road  contrary  to  law  or  to  the  reasonable 
rules  and  regulations  of  the  corporation.  If  the  corporation  is  a  rail- 
road  corporation  it  shall  also  be  liable  in  damages  not  exceeding  five 
[Tliousancl  dollars  lioFTess  thaii  five  hundred~dollars  to  be  assessed  with 


fefeFence  to  the  degree  of  culpability  of  the  corporation  or  its  servants 
)or  agents  and  to  be  recovered  in  an  action  of  tort  commenced  within 
oneyear  from  the  injury  causing  the  death  by  the  executor  or  ad- 
ministrator of  Ike,  deiifiasecLperson  for  the  use  of  the  persons  herein- 
_ before  specified  in  a  case  of  indictment."  " 

""MuNSON^  J.     The  plaintiff  claims  to  recover  by  virtue  of  the  pro- 
visions of  a  public  statute  of  Massachusetts.     The  suit  cannot  be  main- 
tained if  the  statute  declared  upon  is  held  to  be  penal.     Blaine  y.  Curtis, 
59  Vt.  120,  7  Atl.  708,  59  Am.  Rep.  702.     So  far  as  we  are  infor'me'H" 
by  counsel,  or  have  been  able  to  ascertain  by  examination,  no  construc- 
tion has  been  placed  upon  this  statute  by  the  Massachusetts  court. 
It  thus  becomes  necessary  for  us  to  give  to  the  statute  our  own  inter- 
pretation.    Its  provisions  are  different  from  those  of  any  other  statute 
to  which  our  attention  has  been  called.      It  is  not  free  from  expressions 
which  in  themselves  would  characterize  a  statute  as  remedial,  rather 
than  penal.     The  defendant  is  made  liable  in  damages,  and  the  ascer- 
tainment of  the  amount  is  characterized  as  an  assessment.     It  is  cer- 
tain, however,  that  the  designation  of  the  recovery  as  damages  or  as  a 
forfeiture  is  not  conclusive  as  to  the  character  of  the  statute.     A 
statute  giving  a  right  of  recovery  is  often  penal  as  to  one  party  and 
remedial  as  to  the  other.     It  is  said  that  in  such  cases  the  true  test  '7   >,    ^ 
is^  whether  tlie  main  purpose  of  the  "statuteTs  the  giving  of  compen-    i  C/  *^  ' 
sation  for  an  injury  sustained,  or  the  infliction  of  a  punishment  upon    > 
jthe  wrongdoer.     We  think  an  application  of  this  test  to  the  provision  1    oo  "^  dLCa 
in  question  shows  it  to  be  penal.     The  foundation  of  the  action  is  3  r^  ri>rAy*_4,-**/' 
the  loss  of  a  life  by  reason  of  the  defendant's  negligence.     There  was 
no  right  of  action  at  common  law.     This  statute  gives  a  riglit  of 
action  to  the  personal  representative  of  the  deceased  for  the  bene- 
fit of  the  widow  and  children,  or  widow,   or  next  of  kin.     If  the 
right   of    recovery   is    established,    the    damages   are   to   be    $500    in 
any  event.     Any   recovery  beyond  this   is   to  be   assessed   with   ref-    (i^  ^^       —g^ 
erence   to   the    degree    of   the   defendant's   culpability.      It   appears,.      ^^  jjir^ 
then,   that  whatever  the   damages   may   be,   or   whosoever   the   per- 
son  for  whose  benefit  they  are  recovered,  they  are  not  given  with 
reference  to  the  loss  sustained.     If  the  recovery  could  be  had  only 
for  the  benefit  of  widow  and  children,  the  statute  might  perhaps  more 
easily  be  looked  upon  as  remedial.     But  the  recovery  may  be  for  the 
benefit  of  distant  relatives,  who  had  no  claim  upon  the  deceased  for 


^ 


38 


GENERAL  PROVISIONS. 


(Part  1 


support.  And  whether  the  recovery  be  for  the  benefit  of  widow  and 
children  or  of  distant  relatives,  the  health  or  habits  of  the  deceased  may 
have  been  such  as  to  preclude  the  existence  of  any  appreciable  pecuni- 
ary interest  in  the  continuance  of  his  life.  All  these  matters,  which 
enter  into  the  question  of  compensation,  are  excluded  from  the  inquiry. 
The  wrongdoer  is  to  be  punished,  whether  the  person  receiving  the 
amount  of  the  recovery  has  sustained  a  substantial  injury  or  not.  If 
the  beneficiary  has  in  fact  received  an  injury,  it  is  in  no  way  made 
the  basis  of  the  recovery.  The  provision  differs  in  this  respect  from 
those  which  give  damages  in  excess  of  the  injury  received.  Statutes 
giving  double  damages  to  an  aggrieved  party  are  held  not  to  be  penal. 
Burnett  v.  Ward,  43  Vt.  80;  Reed  v.  Northfield,  13  Pick.  (Mass.)  94, 
23  Am.  Dec.  662.  But  in  such  cases  there  is  an  ascertainment  of 
the  actual  damages,  and  that  ascertainment  is  the  basis  of  the  entire 
recovery.  Here  there  is  no  ascertainment  of  the  loss  suffered,  and,  as 
far  as  the  amount  of  the  verdict  is  left  to  the  judgment  of  the  jury, 
it  is  to  be  determined  by  the  culpability  of  the  defendant's  act,  regard- 
less of  the  injury  resulting  from  it  to  the  persons  for  whose  benefit  the 
suit  is  brought.  It  is  true  that  in  Newman  v.  Waite,  43  Vt.  587,  an 
amount  given  without  any  reference  to  the  damage  sustained  was  held 
to  be  given  by  way  of  compensation.  But  in  that  case,  if  the  statute 
had  merely  created  the  duty  of  making  the  returns,  the  common  law 
would  have  enabled  the  town  to  recover  its  actual  damages  for  a  fail- 
ure to  do  so ;  and  it  was  taken  to  have  been  the  purpose  of  the  legis- 
lature in  its  further  provision  to  give  a  certain  sum  as  fixed  damages 
in  lieu  of  actual  damages  otherwise  recoverable  which  might  not  be 
easily  ascertained.  But  that  reasoning  is  not  available  here,  for  in  this 
case  the  existence  of  the  obligation  to  carry  the  deceased  with  due 
care  did  not  give  these  beneficiaries  a  right  to  any  damages  whatever 
for  the  neglect  complained  of.  And  it  is  to  be  noticed  that  the  giving 
of  a  fixed  sum  excludes  a  consideration  of  the  degree  of  culpability 
as  well  as  of  the  loss  sustained.  We  think  the  rule  given  for  deter- 
mining the  unascertained  part  of  the  recovery  is  the  controlling  feature 
of  the  statute.  It  is  difficult  to  say  that  an  assessment  which  is  made 
to  depend  solely  upon  the  degree  of  the  party's  culpability  is  not 
primarily  meted  out  as  a  punishment.  The  sum  is  to  be  determined 
by  the  very  considerations  that  would  govern  a  court  in  fixing  a  fine 
for  involuntary  manslaughter.  The  fact  that  it  is  given  to  persons 
whom  the  law  would  have  entitled  to  share  in  the  estate  of  the  de- 
ceased cannot  control  the  construction.  A  statute  may  be  penal  al- 
though the  entire  amount  recovered  be  given  directly  to  the  party 
injured.  The  disposition  of  the  recovery  and  the  limitations  of  the 
amount  recoverable  are  the  same  in  the  clause  declared  upon  as  in  the 
provision  for  an  alternative  procedure  by  indictment,  contained  in  the 
same  section.  The  provision  which  is  clearly  penal  serves  the  same 
purpose  as  regards  compensation,  and  has  no  greater  effect  as  regards 


Ch.  2) 


PENAL   LAWS. 


39 


punishment.     In  view  of  these  considerations,  and  in  the  absence  of 

knowledge  of  a  construction  by  the  Massachusetts  court,  we  hold  that 

the  provision  sued  upon  is  penal.     Judgment  affirmed,  and  cause  re-  •^ 

nianded.2         ^  ^  ^       .     uo.,.^   ^    *^ .JLaLooU^^   \      ca^    ^^  cP-T^^^ 


1^ 


'..  o-^^'  M  •  ^'        DERRICKSON  v.  S 


(Supreme  Court  of  New  Jersey,  1858.    27  N.  J.  Law,  IGG.)        y-^/i^  LUj  /yt-Jt-cVK 

Assumpsit  in  the  Morris  circuit  court  against  the  administrators  of     *t/'**'*'^'^^*^^[__ 

John^Smith,  tru_stee_of  the  Congress  Manufacturing  Company,  a  New         /Csh":^^^*^^    ' 
York  corporation,  for_  nqncomplianoe_\vith  j_statute  of  the  state  of         '  te^ 

New  York  requiring  corporations  to  make  annual  reports  and  provid-  ^^  /^A^*"^ 

ing  that  upon  a  failure  to  make  such  reports  *'all_the_ trustees  of  the  0  f^tv^*^ 
company  shall  be  jointly  and  severally  Jiable  f^or  all_  debts  of  the  com-  > 
pany  then  existing  and  for  all  that  shall  be  contracted  before  suclO 
report  shall  be  made."     The  defendant  demurred  to  the  declaration, 
and  the  circuit  court  certified  the  case  to  the  Supreme  Court  for  an 
advisory  opinion.' 

Green,  C.  j,*  *  *  *  fhe  only  question  certified  for  the  opin- 
ion of  this  court  is,  whether  the  neglect  of  the  company  to  comply  with 
the  requirements  of  the  statute  of  the  state  of  New  York  entitles  the 
plaintiffs  to  recover  of  the  defendants  in  the  courts  of  this  state  the 
amount  of  their  claim  against  the  corporation. 

The  declaration  sets  out  the  statute  upon  which  the  action  is  found- 
ed ;  the  organization  of  the  company  under  the  provisions  of  the  stat- 
ute ;  the  indebtedness  of  the  company  to  the  plaintiffs ;  that  the  in- 
testate became  a  trustee,  and  that  while  he  was  such  trustee  there 
was  a  failure  of  the  company  to  perform  the  requirements  of  the 
statute,  by  reason  whereof  the  defendant's  intestate  became  liable  to 
pay  the  amount  of  the  indebtedness  of  the  company  to  the  plaintiffs. 

The  objection  to  the  right  of  the  plaintiffs  to  recover  is,  that  the''7  ijGlLM''**'^    V^^^^^^^^ 
alleged  liability  of  the  defendant,  being  a  mere  creature  of  the  statute  r  ^jui/^  ^^^x*-"*-*^ 
of  a  foreign  state,  cannot  be, enforced  out  of  the  jurisdiction  of  such  1  ^  ^-H*   c-*^*****"^ 

The  general  principle  is  conceded,  that  penal  laws  are  strictly  local,   ^'^  il^^^^O'^'^-^ 
and  that  the  penal  statutes  of  one  state  can  have  no  operation  in  J-v     ^   '  %   ' 


2 Accord:  O'Reilly  v.  New  York  &  N.  V..  R.  C.c.  Ifi  R.  T.  .SSS.  17  Atl.  171. 
906,  19  A1-1.  24-t.  5  L.  R  A  .^^4  6  L.  R,  A.  719  (1SS9)  ;_LymaD  v.  Boston  &  A. 
R.  Co.  (C.  C.)  70  Fed.  409  (189.5);  Dale  v.  Atchison,"  T.  &  S.  F.  R.  Co.,  57 
Kan.  601,  47  Pac.  521  (1897);  Raisor  v.  Chicago  &  A.  R.  Co.,  215  111.  47.  74 
N.  E.  69,  106  Am.  St.  Rep.  153  (1905).  r.oTitrM-  -nngtnn  .'^^  AT  R  Cn  v  TTnrrl 
108  Fed.  116.  47  C.  C.  A.  615,  56  L.  R  A.  193  (1901);  Malloy  v.  American 
Hide  &  Leather  Co.  (U.  C.)  148  i^'M.  482  (19Ub). " 

3  This  brief  statement  of  facts  has  been  substituted  for  that  contained  in 
the  opinion  of  the  Chief  Justice. 

4A  part  of  the  opinion  and  the  concurring  opinions  of  Elmer  and  Vredeu- 
burgh,  JJ.,  have  been  omitted. 


40 


GENERAL  PROVISIONS. 


(Part  1 


:}^.. 


OtS 


M/t 


another  state.  Story's  Conf.  of  L.  §§  620,  621.  But  it  is  insisted  that 
the  provision  of  the  statute  which  renders  the  defendant  liable  is  not 
a  penalty  in  any  proper  sense,  but  that  the  liability  of  the  defendant 
is  founded  upon  contract. 

It  has  been  decided  in  the  state  of  New  York,  and  seems  to  be  now 
settled  after  some  conflict  of  authority,  that  where  a  statute  or  act  of 
incorporation  declares  that  the  individual  corporators  shall  be  jointly 
and  severally  liable  for  the  debts  of  the  corporation,  such  liability  is 
not  founded  on  the  statute,  and  that  a  suit  against  the  stockholder,  to 
charge  him  individually  with  a  debt  contracted  by  the  corporation, 
pursuant  to  a  provision  in  the  act  of  incorporation,  is  not  an  action 
upon  the  statute  for  a  forfeiture.  Corning  v.  McCullough,  1  N.  Y. 
47,  49  Am.  Dec.  287;  Freeland  v.  McCullough,  1  Denio  (N.  Y.)  414, 
43  Am.  Dec.  685 ;  Harger  v.  McCullough,  2  Denio  (N.  Y.)  119 ;  Moss 
V.  Oakley,  2  Hill  (N.  Y.)  265  ^Bailey  v.  Bancker,  3  Hill  (N.  Y.)  188, 
38  Am.  Dec.  625;  Moss  v.  McCullough,  5  Hill  (N.  Y.)  131;  Moss 
v.  McCullough,  7  Barb.  (N.Y.)  279. 

iln  such  case  it  is  held  that  the  stockholders  are  liable,  in  an  original 
and  primary  sense,  like  partners  or  members  of  an  unincorporated' 
association,  and  that  their  liability*  is  not  created  by  the  statute  of 
incorporation.  That  the  effect  of  such  enactment  is  to  invest  the 
company  with  a  qualified  corporate  capacity,  and  not  to  confer  upon 
the  stockholders,  either  directly  or  indirectly  as  the  consequence  of 
such  incorporation  or  otherwise,  any  exemption  or  immunity  from 
personal  liability  for  the  debts  of  the  company,  to  be  contracted  in  its 
\corporate  name  and  capacity. 

Without  calling  in  question  the  soundness  of  this  conclusion,  but 
conceding,  for  the  purpose  of  the  present  inquiry,  the  law  to  be  as 
settled  by  the  result  of  these  authorities,  the  present  case  does  not  fall 
within  the  reach  of  the  principle.  In  the  statute  upon  which  those 
decisions  were  founded,  the  stockholders  were  declared  to  be  liable  for 
the  debts  of  the  corporation,  in  like  manner  as  if  they  were  members 
of  an  unincorporated  company.  The  act  of  incorporation  was  so 
limited  or  qualified  that  it  did  not  exempt  the  stockholders  from  in- 
dividual liability  for  the  debts  contracted  by  the  corporation;  conse- 
quently each  individual  corporator  became  liable  for  every  debt  of 
the  body  corporate.  Such  liability  he  voluntarily  assumed  by  becom- 
ing a  member  of  the  corporation.  The  personal  liability  of  the  stock- 
holder to  pay  the  debt  is  the  immediate  and  necessary  consequence  of 
the  contract  made  by  the  company.  It  becomes,  by  the  terms  of  the 
charter,  his  debt. 

It  is  clear  that  this  reasoning  has  no  application  to  the  case  now 
under  consideration.  It  is  not  claimed  that  the  defendant,  by  the 
act  of  incorporation,  is  individually  liable,  as  a  corporator,  for  the 
debts  of  the  body  corporate,  or  that  his  liability  attached  as  a  neces- 
sary result  of  the  contract  made  by  the  company.  His  liability  results 
from  the  failurepf  the  trustees  to  comply  with  the  requirements  of 


r 


Ch.  2)  PENAL   LAWS.  41 

the  statute^  Itis^in  fact,  a  penalty  inflicted  upon  the  trustees_for  a 
"faitlire~to  perfornia  duty  enjomeci  by  the  statute.  It  is  immaterial 
whether  that  penalty  be  a  speciHed  sum  or  the  payment  of  the  debts 
of  the  corporation.  In  either  case  it  is  a  penalty  imposed  by  statute ; 
nor  is  it  perceived  how  the  liability  of  the  individual  trustee  to  pay  the 
debts  of  the  corporation  can  be  said,  in  any  proper  way,  to  be  founded 
on  contract.  It  certainly  did  not  result  from  the  contract  made  by 
the  corporation,  nor  from  the  defendant  becoming  a  stockholder,  nor 
from  his  accepting-  the  office  of  trustee,  but  solely  frorn  the  omission^ 
to  comply  with  the  statute^  Now  the  acceptance  of  the  charter,  or  the 
"^efehdaht  becoming  a  stockholder,  is  doubtless  an  assent  to  the  terms 
of  the  charter,  but  it  is,  in  no  appropriate  sense,  an  engagement  to  pay 
the  debts  of  the  company,  imposed  as  a  penalty  for  violations  of  the 
charter.  Such  liability  is  clearly  the  creature  of  the  statute.  *  *  * 
With  every  disposition  to  yield  to  the  claims  of  comity,  and  to  sus- 
tain, as  far  as  we  lawfully  may,  what  may  be  deemed  the  salutary 
legislation  of  a  sister  state,  I  am  of  opinion  that  there  is  no  principle 
upon  which  the  present  action  can  be  sustained  in  the  courts  of  this 
state,  and  that  the  Circuit  Court  should  be  advised  accordingly. 


HUNTINGTON  v.  ATTRILL. 


(Supreme  Court  of  the  United  States,  1892.     14G  U.  S.  657,  13  Sup.  Ct.  224,  .       /^Jm*/* 

36  L.  Ed.  1123.)  "^{/^  -X'*'-*^^ 


Collis  P.  Huntington,  a  resident  of  New  York,  lent  to  the  Rocka-       \^ 


H-r^ 


way  Beach  Improvement  Company,  Limited,  a  New  York  corporation,  a  (^ 

$100,000  on  June  15,  1880,  repayable  on  demand.     Henry  Y.  Attrill  p  *  ^ 

was  a  director  of  this  company  and  continued  to  act  as  such  until  after 
January  29,  1881.  On  June  30,  1880,  Attrill,  as  director  of  the 
company,  signed  and  made  oath  to  and  caused  to  be  recorded,  as  re- 
quired by  the  law  of  New  York,  a  certificate,  which  he  knew  to  bd 
false,  stating  that  the  whole  of  the  capital  stock  of  the  corporation  had 
been  paid  in,  whereas  in  truth  no  part  had  been  paid  in.  By  making 
such  false  certificate  he  became  liable,  by  the  law  of  New  York,  for 
all  the  debts  of  the  company  contracted  before  Jan.  29,  1881.  Under 
this  statute  Huntington  obtained  a  judgment  against  Attrill  in  the 
Supreme  Court  of  New  York  for  the  county  of  Kings  for  nearly 
$100,000;  only  $932  of  the  sum  borrowed  having  been  repaid. 

On  March  21,  1888,  Huntington  filed  a  bill  in  the  circuit  court  of 
Baltimore  city  against  the  Equitable  Gaslight  Company  of  Baltimore, 
a  Maryland  corporation,  and  against  Attrill,  his  wife  and  three 
daughters,  to  set  aside  a  transfer  of  stock  in  that  company  made  by 
Attrill  for  their  benefit  and  in  fraud  of  his  creditors,  and  to  charge 
that  stock  with  the  payment  of  the   above  judgment.     One   of   the 


42  GENERAL  PROVISIONS.  (Part  1 

daughters  demurred  to  the  bill,  because  it  showed  that  plaintiff's  claim 
was  for  the  recovery  of  a  penalty  against  Attrill  and  because  it  did 
not  state  a  case  which  entitled  the  plaintiff  to  any  relief  in  a  court 
of  equity  in  the  state  of  Maryland.  The  circuit  court  of  Baltimore 
city  overruled  the  demurrer.  On  appeal  to  the  Court  of  Appeals  of 
the  state  of  Maryland,  the  order  was  reversed,  and  the  bill  dismissed. 
Attrill  V.  Huntington,  70  Md.  191,  16  Atl.  651,  2  L.  R.  A.  779,  14 
Am.  St.  Rep.  344.  A  writ  of  error  to  the  Supreme  Court  of  the  • 
United  States  was  sued  out  by  Huntington  under  the  "full  faith  and 
credit"  clause  of  the  federal  Constitution.^ 

Gray^  j  6  *  *  *  ffj^Q  question  whether  due  faith  and  credit 
were  thereby  denied  to  the  judgment  rendered  in  another  state  is  a 
federal  question,  of  which  this  court  has  jurisdiction  on  this  writ  of 
error.    ,£reenjv,3^_Buskirk^5,m  L.^d._599;  Crapo 

V.  Kelly,  16  Wall.  610,  6i9,  21  L.  Ed.  430;  Dupasseur  v.^ocHereau,  21 
Wall.  130,  134,  22  L.  Ed.  588 ;  Crescent  City  Live  Stock  Co.  v.  Butch- 
ers' Union  Slaughter  House  Co.,  120  U.  S.  141,  146,  147,  7  Sup.  Ct. 
472,  30  L.  Ed.  614;  Cole  v.  Cunningham,  133  U.  S.  107,  10  Sup.  Ct. 
269,  33  L.  Ed.  538 ;  Carpenter  v.  Strange,  141  U.  S.  87,  103,  11  Sup. 
Ct.  960,  35  L.  Ed.  640. 

In  order  to  determine  this  question,  it  will  be  necessary,  in  the  first 
place,  to  consider  the  true  scope  and  meaning  of  the  fundamental 
maxim  of  international  law,  stated  by  Chief  Justice  Marshall  in  the 
fewest  possible  words:  "The  courts  of  no  country  execute  the  penal 
laws  of  another."  The  Antelope,  10  Wheat.  66,  123,  6  L.  Ed.  268. 
In  interpreting  this  maxim,  there  is  danger  of  being  misled  by  the 
different  shades  of  meaning  allowed  to  the  word  "penal"  in  our 
language. 

In  the  municipal  law  of  England  and  America,  the  words  "penal" 
and  "penalty"  have  been  used  in  various  senses.  Strictly  and  primari- 
ly, they  denote  punishment,  whether  corporal  or  pecuniary,  imposed 
and  enforced  by  the  state  for  a  crime  or  offense  against  its  laws. 
United  States  v.  Reisinger,  128  U.  S.  398,  402,  9  Sup.  Ct.  99,  32  L. 
Ed.  480;  United  States  v.  Chouteau,  102  U.  S.  603,  611,  26  L.  Ed. 
246.  But  they  are  also  commonly  used  as  including  any  extraordinary 
liability  to  which  the  law  subjects  a  wrongdoer  in  favor  of  the  person 
wronged,  not  limited  to  the  damages  suffered.  They  are  so  elastic  in 
meaning  as  even  to  be  familiarly  applied  to  cases  of  private  contracts7 
wholly  independent  of  statutes,  as  when  we  speak  of  the  "penal  sum" 
or  "penalty"  of  a  bond.  In  the  words  of  Chief  Justice  Marshall: 
"In  general,  a  sum  of  money  in  gross,  to  be  paid  for  the  nonperform- 
ance of  an  agreement,  is  considered  as  a  penalty,  the  legal  operation 
of  which  is  to  cover  the  damages  which  the  party  in  whose  favor  the 
stipulation  is  made  may  have  sustained  from  the  breach  of  contract  by 

6  The  statement  of  facts  lias  been  abstracted  from  the  opinion. 
«  Portions  of  tlie  opinion  have  been  omitted. 


Ch.  2)  PENAL   LAWS.  43 


nr>-' 


the  opposite  party."     Tayloe  v.  Sandiford,  7  Wheat.  13,  17,  5  L.  Ed. 
384.  ^ 

Penal  laws,  strictly  and  properly^  are  those  imposing  punishment  for 
an  offense  committed  against  the  state,  and  which,  by  the  English  and  /    #i    ^^^^^^  . 
American  Constitutions,  the  executive  of  the  state  has  the  power  to  |       /vfP^^^^^ 
pardon.     Statutes  giving  a  private  action  against  the  wrongdoer  are  l*^         *Jav**^    ' 
sometimes  spoken  of  as  penal  in  their  nature,  but  in  such  cases  it  has    j  jLJ^^*-'"'^"^ 
been  pointed  out  that  neither  the  liability  imposed  nor  the  remedy_y 
given  is  strictly  penal. 

The  action  of  an  owner  of  property  against  the  hundred  to  re- 
cover damages  caused  by  a  mob  was  said  by  Justices  Willes  and  BuUer 
to  be  "penal  against  the  hundred,  but  certainly  remedial  as  to  the 
sufferer."  Hyde  v.  Cogan,  2  Doug.  699,  705,  706.  A  statute  giving 
the  right  to  recover  back  money  lost  at  gaming,  and,  if  the  loser  does 
not  sue  within  a  certain  time,  authorizing  a  qui  tam  action  to  be 
brought  by  any  other  person  for  threefold  the  amount,  has  been  held 
to  be  remedial  as  to  the  loser,  though  penal  as  regards  the  suit  by  a 
common  informer.  Bones  v.  Booth,  2  W.  Bl.  1226;  Brandon  v.  Pate, 
2  H.  Bl.  308 ;  Grace  v.  McEIroy,  1  Allen  (Mass.)  563 ;  Read  v,  Stewart, 
129  Mass.  407,  410;  Cole  v.  Groves,  134  Mass.  471.  As  said  by  Mr. 
Justice  Ashhurst  in  the  King's  Bench,  and  repeated  by  Mr.  Justice 
Wilde  in  the  Supreme  Judicial  Court  of  Massachusetts,  "it  has  been 
held  in  many  instances  that,  where  a  statute  gives  accumulative  dam- 
ages to  the  party  grieved,  it  is  not  a  penal  action."  Woodgate  v. 
Knatchbull,  2  Term  R.  148,  154;  Read  v.  Chelmsford,  16  Pick.  (Mass.) 
128,  132.  Thus  a  statute  giving  to  a  tenant,  ousted  without  notice, 
double  the  yearly  value  of  the  premises  against  the  landlord,  has  been 
held  to  be  "not  like  a  penal  law,  where  a  punishment  is  imposed  for  a 
crime,"  but  "rather  as  a  remedial  than  a  penal  law,"  because  "the 
act  indeed  does  give  a  penalty,  but  it  is  to  the  party  grieved."  Lake 
v.  Smith,  1  Bos.  &  P.  (N.  R.)  174,  179,  180,  181;  Wilkinson  v.  Colley, 
5  Burrows,  2694,  2698.  So  in  an  action  given  by  statute  to  a  traveler 
injured  through  a  defect  in  a  highway,  for  double  damages  against  the 
town,  it  was  held  unnecessary  to  aver  that  the  facts  constituted  an 
offense,  or  to  conclude  against  the  form  of  the  statute,  because,  as 
Chief  Justice  Shaw  said :  "The  action  is  purely  remedial,  and  has 
none  of  the  characteristics  of  a  penal  prosecution.  AH  damages  for 
neglect  or  breach  of  duty  operate  to  a  certain  extent  as  punishment; 
but  the  distinction  Is  that  it  is  prosecuted  for  the  purpose  of  punish- 
ment, and  to  deter  others  from  offending  in  like  manner.  Here  the 
plaintiff  sets  out  the  liability  of  the  town  to  repair,  and  an  injury  to 
himself  from  a  failure  to  perform  that  duty.  The  law  gives  him  en- 
hanced damages;  but  still  they  are  recoverable  to  his  own  use,  and 
in  form  and  substance  the  suit  calls  for  indemnity."  Reed  v.  North- 
field,  13  Pick.  (Mass.)  94,  100,  101,  23  Am.  Dec.  662. 

The  test  whether  a  law  is  penal,  in  the  strict  and  primary  sense,  is 
whether  the  wrong  sought  to  be  redressed  is  a  wrong  to  the  public 


44  GENERAL  PROVISIONS.  (P^^^  1 

or  a  wrong  to  the  individual,  according  to  the  familiar  classification  of 
Blackstone:  "Wrongs  are  divisible  into  two  sorts  or  species:  private 
wrongs  and  public  wrongs.  The  former  are  an  infringement  or 
privation  of  the  private  or  civil  rights  belonging  to  individuals,  con- 
sidered as  individuals,  and  are  thereupon  frequently  termed  'civil  in- 
juries' ;  the  latter  are  a  breach  and  violation  of  public  rights  and  duties, 
which  affect  the  whole  community,  considered  as  a  community,  and 
are  distinguished  by  the  harsher  appellation  of  'crimes  and  misde- 
meanors.' "     3  Bl.  Comm.  2. 

Laws  have  no  force  of  themselves  beyond  the  jurisdiction  of  the 
state  which  enacts  them,  and  can  have  extraterritorial  effect  only  by 
the  comity  of  other  states.  The  general  rules  of  international  comity 
upon  this  subject  were  well  summed  up,  before  the  American  Revolu- 
tion, by  Chief  Justice  De  Grey,  as  reported  by  Sir  William  Black- 
stone:  "Crimes  are  in  their  nature  local,  and  the  jurisdiction  of 
crimes  is  local.  And  so  as  to  the  rights  of  real  property,  the  subject 
being  fixed  and  immovable.  But  personal  injuries  are  of  a  transi- 
tory nature,  and  sequuntur  forum  rei,"  Rafael  v.  Verelst,  2  W.  Bl. 
1055,  1058. 

Crimes  and  offenses  against  the  laws  of  any  state  can  only  be  de- 
fined, prosecuted,  and  pardoned  by  the  sovereign  authority  of  that 
state;  and  the  authorities,  legislative,  executive,  or  judicial,  of  other 
states  take  no  action  with  regard  to  them,  except  by  way  of  extradi- 
tion, to  surrender  offenders  to  the  state  whose  laws  they  have  violated, 
and  whose  peace  they  have  broken.     *     *     * 

Upon  the  question  what  are  to  be  considered  penal  laws  of  one 
country,  within  the  international  rule  which  forbids  such  laws  to  be 
enforced  in  any  other  country,  so  much  reliance  was  placed  by  each 
party  in  argument  upon  the  opinion  of  this  court  in  Wisconsin  v. 
Pelican  Ins.  Co.,  127  U.  S.  265,  8  Sup.  Ct.  1370,  32  L.  Ed.  239,  that 
it  will  be  convenient  to  quote  from  that  opinion  the  principal  propo- 
sitions there  affirmed: 

"The  rule  that  the  courts  of  no  country  execute  the  penal  laws 
of  another  applies,  not  only  to  prosecutions  and  sentences  for  crimes 
and  misdemeanors,  but  to  all  suits  in  favor  of  the  state  for  the  re- 
covery of  pecuniary  penalties   for  any  violation  of  statutes   for  the 
protection  of  its  revenue,  or  other  municipal  laws,  and  to  all  judg- 
ments for  such  penalties."     Page  290,  127  U.  S.,  and  page  1374,  8 
Sup.  Ct.  (32  L.  Ed.  239). 
/^    "The  application  of  the  rule  to  the  courts  of  the  several  states  and 
^  j,y^       it       )  of  the  United  States  is  not  affected  by  the  provisions  of  the  Constitu- 
(y^  ^         J.    />r         /  tion  and  of  the  act  of  Congress,  by  which  the  judgments  of  the  courts 
J^M^^"^    ft  Ml        I    ^^  ^"y  state  are  to  have  such  faith  and  credit  given  to  them  in  every 
^         G<il   ^^o     /    court  within  the  United  States  as  they  have  by  law  or  usage  in  the 
\     state  in  which  they  were  rendered."     Page  291,  127  U.  S.,  and  page 
1375,  8  Sup.  Ct.  (32  L.  Ed.  239). 


<^ 


Ch.  2)  PENAL   LAWS.  45 

"The  essential  nature  and  real  foundation  of  a  cause  of  action  are 
not  changed  by  recovering  judgment  upon  it;  and  the  technical  rules, 
which  regard  the  original  claim  as  merged  in  the  judgment,  and  the 
judgment  as  implying  a  promise  by  the  defendant  to  pay  it,  do  not 
preclude  a  court,  to  which  a  judgment  is  presented  for  affirmative 
action  (while  it  cannot  go  behind  the  judgment  for  the  purpose  of 
examining  into  the  validity  of  the  claim),  from  ascertaining  whether 
the  claim  is  really  one  of  such  a  nature  that  the  court  is  authorized 
to  enforce  it."  Pages  292,  293,  127  U.  S.,  and  page  1375,  8  Sup.  Ct. 
(32  L.  Ed.  239). 

"The  statute  of  Wisconsin,  under  which  the  state  recovered  in  one 
of  her  own  courts  the  judgment  now  and  here  sued  on,  was  in  the 
strictest  sense  a  penal  statute,  imposing  a  penalty  upon  any  insurance 
company  of  another  state  doing  business  in  the  state  of  Wisconsin 
without  having  deposited  with  the  proper  officer  of  the  state  a  full'' 
statement  of  its  property  and  business  during  the  previous  year.  The 
cause  of  action  was  not  any  private  injury,  but  solely  the  offense 
committed  against  the  state  by  violating  her  law.  The  prosecution' 
was  in  the  name  of  the  state,  and  the  whole  penalty,  when  recovered, 
would  accrue  to  the  state."  Page  299,  127  U.  S.,  and  page  1378,  8 
Sup.  Ct.  (32  L.  Ed.  239). 

Such  were  the  grounds  upon  which  it  was  adjudged  in  that  case 
that  this  court,  under  the  provision  of  the  Constitution  giving  it 
original  jurisdiction  of  actions  between  a  state  and  citizens  of  another 
state,  had  no  jurisdiction  of  an  action  by  a  state  upon  a  judgment 
recovered  by  it  in  one  of  its  own  courts  against  a  citizen  or  a  cor- 
poration of  another  state  for  a  pecuniary  penalty  for  a  violation  of 
its  municipal  law.'^     *     *     * 

For  the  purposes  of  extraterritorial  jurisdiction,  it  may  well  be 
that  actions  by  a  common  informer,  called,  as  Blackstone  says,  "  'popu- 
lar actions,'  because  they  are  given  to  the  people  in  general,"  to  recover 
a  penalty  imposed  by  statute,  for  an  offense  against  the  law,  and 
which  may  be  barred  by  a  pardon  granted  before  action  brought,  may 
stand  on  the  same  ground  as  suits  brought  for  such  a  penalty  in  the 
name  of  the  state  or  of  its  officers,  because  they  are  equally  brought 
to  enforce  the  criminal  law  of  the  state.  3  Bl.  Comm.  161,  162; 
2  Bl.  Comm.  437,  438 ;  Adams  v.  Woods,  2  Cranch,  336,  2  L.  Ed.  297 ; 
Gwin  v.  Breedlove,  2  How.  29,  11  L.  Ed.  167 ;  United  States  v.  Con- 
nor, 138  U.  S.  61.  66,  11  Sup.  Ct.  229,  34  L.  Ed.  860 ;  Bryant  v.  Ela, 
Smith  (N.  H.)  396.  And  personal  disabilities  imposed  by  the  law  of 
a  state,  as  an  incident  or  consequence  of  a  judicial  sentence  or  decree, 
by  way  of  punishment  of  an  offender,  and  not  for  the  benefit  of  any 
other  person — such  as  attainder,  or  infamy,  or  incompet^pcy  of  a 
convict  to  testify,  or  disquafification  of  the  guilty  party  to  a  cause  of 
divorce  for  adultery  t6~maff3ragain — are  doubtless  strictly  penal,  and 

1  See  Fauntleroy  v.  Lum,  210  U.  S.  230,  28  Sup.  Ct.  G41,  52  L.  Ed.  1089  (1908), 


46 


GENBRAL  PROVISIONS. 


(Part  1 


0^ 


therefore  have  no  extraterritorial  operation.  Story,  Confl.  Law,  §§ 
91,  -92;  Dicey,  Dom.  162;  FolHott  v.  Ogden,  1  H.  Bl.  123,  and  3 
Term  R.  726;  Logaji  v.  United  States,  144  U.  S.  263/303,  12  Sup.  Ct. 
617,  36  L.  Edr~429;  Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110,  24  Am. 
Dec.  444;  Ponsford  v.  Johnson,  2  Blatchf.  51,  Fed.  Cas.  No.  11,266; 
Commonwealth  v.  Lane,  113  Mass.  458,  471,  18  Am.  Rep.  509 ;  Van 
Voorhis  V.  Brintnall,  86  N.  Y.  18,  28,  29,  40  Am.  Rep.  505. 

The  question  whether  a  statute  of  one  state^  which  in  some  aspects 
may  be  called  penal,  is  a  penal  law,  in  the  international  sense,  so  that 
it  cannot  be  enforced  in  the  courts  of  another  state,  depends  upon 
the  question  whether  its  purpose  is  to  punish  an  offense  against  the 
public  justice  of  the  state,  or  to  afford  a  private  remedy  to  a  person 
injured  by  the  wrongful  act.  There  could  be  no  better  illustration 
of  this  than  the  decision  of  this  court  in  Detiiiie^v.  Central  R.  Cfl._Qi — 
New  Jersey,  103  U.  S.  11,  26  L.  Ed.  439.     *     *     * 

That  decision  is  important  as  establishing  two  points :  (1)  The 
court  considered  "criminal  laws,"  that  is  to  say,  laws  punishing  crimes, 
as  constituting  the  whole  class  of  penal  laws  which  cannot  be  enforced 
extraterritorially.  (2)  A  statute  of  a  state,  manifestly  intended  to 
protect  life,  and  to  impose  a  new  and  extraordinary  civil  liability  upon 
those  causing  death,  by  subjecting  them  to  a  private  action  for  the 
pecuniary  damages  thereby  resulting  to  the  family  of  the  deceased, 
might  be  enforced  in  a  circuit  court  of  the  United  States  held  in 
another  state,  without  regard  to  the  question  whether  a  similar  liability 
would  have  attached  for  a  similar  cause  in  that  state.  *  *  * 
/^  The  provision  of  the  statute  of  New  York  now  in  question,  making 
the  officers  of  a  corporation,  who  sign  and  record  a  false  certificate 
of  the  amount  of  its  capital  stock,  liable  for  all  its  debts,  is  in  no  sense 
a  criminal  or  quasi  criminal  law.  The  statute,  while  it  enables  persons 
complying  with  its  provisions  to  do  business  as  a  corporation,  without 
being  subject  to  the  liability  of  general  partners,  takes  pains  to  secure 
and  maintain  a  proper  corporate  fund  for  the  payment  of  the  corporate 
debts.  With  this  aim,  it  makes  the  stockholders  individually  liable 
for  the  debts  of  the  corporation  until  the  capital  stock  is  paid  in,  and 
a  certificate  of  the  payment  made  by  the  officers,  and  makes  the  officers 
liable  for  any  false  and  material  representation  in  that  certificate. 
The  individual  liability  of  the  stockholders  takes  the  place  of  a  cor- 
porate fund,  until  that  fund  has  been  duly  created;  and  the  individual 
liability  of  the  officers  takes  the  place  of  the  fund,  in  case  their  state- 
ment that  it  has  been  duly  created  is  false.  If  the  officers  do  not 
truly  state  and  record  the  facts  which  exempt  them  from  liability,  they 
are  made  liable  directly  to  every  creditor  of  the  company,  who  by 
reason  of  their  wrongful  acts  has  not  the  security,  for  the  payment  of 
his  debt  out  of  the  corporate  property,  on  which  he  had  a  right  to  rely. 
As  the  statute  imposes  a  burdensome  liability  on  the  officers  for  their 
wrongful  act,  it  may  well  .be  considered  penal,  in  the  sense  that  'it 
should  be  strictly  construed.     But  as  it  gives  a  civil  remedy,  at  the 


Ch.  2)  PENAL   LAWS.  47 

private  suit  of  the  creditor  only,  and  measured  by  the  amount  of  his 
debt,  it  is  as  to  him  clearly  remedial.  To  maintSin  such  a  suit  is  not 
to  administer  a  punishment  imposed  upon  an  offender  against  the 
state,  but  simply  to  enforce  a  private  right  secured  under  its  laws  to 
an  individual.  We  can  see  no  just  ground,  on  principle,  for  holding 
such  a  statute  to  be  a  penal  law,  in  the  sense  that  it  cannot  be  enforced 
in  a  foreign  state  or  country. 

The  decisions  of  the  Court  of  Appeals  of  New  York,  so  far  as  they 
have  been  brought  to  our  notice,  fall  short  of  holding  that  the  liability 
imposed  upon  the  officers  of  the  corporation  by  such  statutes  is  a  pun- 
ishment or  penalty  which  cannot  be  enforced  in  another  state.     *     *     * 

It  is  true  that  the  courts  of  some  states,  including  Maryland,  have 
declined  to  enforce  a  similar  liability  imposed  by  the  statute  of  another 
state.  But  in  each  of  those  cases  it  appears  to  have  been  assumed  to 
be  a  sufficient  ground  for  that  conclusion  that  the  liability  was  not 
founded  in  contract,  but  was  in  the  nature  of  a  penalty  imposed  by 
statute ;  and  no  reasons  were  given  for  considering  the  statute  a  penal 
law,  in  the  strict,  primary,  and  international  sense.  Derrickson 
Smith,  _27_N.  J.  Law^  166j  Halsey  v.  McLean,  12  Allen  (Ma"^I)T38, 
90  Am.  Dec.  157;  First  Nat.  Bank  of  Plymouth  v.  Price,  33  Md.  487, 
3  Am.  Rep.  204.     *     *     * 

The  true  limits  of  the  international  rule  are  well  stated  in  the  deci- 
sion of  the  judicial  committee  of  the  Privy  Council  of  England,  upon 
an  appeal  from  Canada,  in  an  action  brought  by  the  present  plaintiff 
against  Attrill  in  the  province  of  Ontario  upon  the  judgment  to  enforce 
which  the  present  suit  was  brought.  The  Canadian  judges,  having  in 
evidence  before  them  some  of  the  cases  in  the  Court  of  Appeals  of 
New  York,  above  referred  to,  as  well  as  the 'testimony  of  a  well- 
known  lawyer  of  New  York  that  such  statutes  were,  and  had  been 
held  by  that  court  to  be,  strictly  penal  and  punitive,  differed  in  opinion 
upon  the  question  whether  the  statute  of  New  York  was  a  penal  law, 
which  could  not  be  enforced  in  another  country,  as  well  as  upon  the 
question  whether  the  view  taken  by  the  courts  of  New  York  should 
be  conclusive  upon  foreign  courts,  and  finally  gave  judgment  for  the 
defendant.     Huntington  v.  Attrill,  17  Ont.  245,  and  18  Ont.  App.  136. 

In  the  Privy  Council,  Lord  Watson,  speaking  for  Lord  Chancellor 
Halsbury  and  other  judges,  as  well  as  for  himself,  delivered  an  opin- 
ion in  favor  of  reversing  the  judgment  below,  and  entering  a  decree 
for  the  appellant,  upon  the  ground  that  the  action  "was  not,  in  the 
sense  of  international  law,  penal,  or,  in  other  words,  an  action  on  be- 
half of  the  government  or  community  of  the  state  of  New  York  for 
punishment  of  an  offense  against  their  municipal  law."  The  fact  that 
that  opinion  has  not  been  found  in  any  series  of  Reports  readily  ac- 
cessible in  this  country,  but  only  in  8  Law  T.  R.  341,  affords  special 
reasons  for  quoting  some  passages. 

"The  rule"  of  international  law,  said  Lord  Watson,  "had  its  founda- 
tion  in   the   well-recognized  principle  that  crimes,   including   in   that 


2^ 


48  GENERAL  PROVISIONS.  (Part  1 

term  all  breaches  of  public  law  punishable  by  pecuniary  mulct  or 
otherwise,  at  the  instance  of  the  state  government,  or  of  some  one 
representing  the  public,  were  local  in  this  sense — that  they  were  only 
cognizable  and  punishable  in  the  country  where  they  were  committed. 
Accordingly  no  proceeding,  even  in  the  shape  of  a  civil  suit,  which 
had  for  its  object  the  enforcement  by  the  state,  whether  directly  or 
indirectly,  of  punishment  imposed  for  such  breaches  by  the  lex  loci, 
ought  to  be  admitted  in  the  courts  of  any  other  country.  In  its  ordi- 
nary acceptation,  the  word  'penal'  might  embrace  penalties  for  in- 
fractions of  general  law,  which  did  not  constitute  offenses  against  the 
state;  it  might,  for  many  legal  purposes,  be  applied  with  perfect  pro- 
priety to  penalties  created  by  contract;  and  it,  therefore,  when  taken 
by  itself,  failed  to  mark  that  distinction  between  civil  rights  and  crim- 
inal wrongs  which  was  the  very  essence  of  the  international  rule." 

After  observing  that,  in  the  opinion  of  the  judicial  committee,  the 
first  passage  above  quoted  from  Wisconsin  v.  Pelican  Ins.  Co.,  127  U. 
S.  265,  290,  8  Sup.  Ct.  1370,  32  L.  Ed.  239,  "disclosed  the  proper  test 
for  ascertaining  whether  an  action  was  penal,  within  the  meaning  of 
the  rule,"  he  added:  "A  proceeding,  in  order  to  come  within  the 
scope  of  the  rule,  must  be  in  the  nature  of  a  suit  in  favor  of  the  state 
whose  law  had  been  infringed.  All  the  provisions  of  municipal 
statutes  for  the  regulation  of  trade  and  trading  companies  were  pre- 
sumably enacted  in  the  interest  and  for  the  benefit  of  the  community 
at  large ;  and  persons  who'  violated  those  provisions  were,  in  a  certain 
sense,  offenders  against  the  state  law,  as  well  as  against  individuals 
who  might  be  injured  by  their  misconduct.  But  foreign  tribunals  did 
not  regard  those  violations  of  statute  law  as  offenses  against  the  state, 
unless  their  vindication  rested  with  the  state  itself,  or  with  the  com- 
munity which  it  represented.  Penalties  might  be  attached  to  them, 
but  that  circumstance  would  not  bring  them  within  the  rule,  except 
in  cases  where  those  penalties  were  recoverable  at  the  instance  of  the 
state,  or  of  an  official  duly  authorized  to  prosecute  on  its  behalf,  or 
of  a  member  of  the  public  in  the  character  of  a  common  informer.  An 
action  by  the  latter  was  regarded  as  an  actio  popularis,  pursued,  not 
in  his  individual  interest,  but  in  the  interest  of  the  whole  community." 

He  had  already,  in  an  earlier  part  of  the  opinion,  observed :  "Their 
lordships  could  not  assent  to  the  proposition  that,  in  considering 
whether  the  present  action  was  penal  in  such  sense  as  to  oust  their 
jurisdiction,  the  courts  of  Ontario  were  bound  to  pay  absolute  defer- 
ence to  any  interpretation  which  might  have  been  put  upon  the  statute 
,of  1875  in  the  state  of  New  York.  They  had  to  construe  and  apply 
an  international  rule,  which  was  a  matter  of  law  entirely  within  the 
cognizance  of  the  foreign  court  whose  jurisdiction  was  invoked.  Judi- 
cial decisions  in  the  state  where  the  cause  of  action  arose  were  not 
precedents  which  must  be  followed,  although  the  reasoning  upon 
which  they  were  founded  must  always  receive  careful  consideration 
and  might  be  conclusive.     The  court  appealed  to  must  determine  for 


p^^- 


Ch.  2)  PENAL   LAWS.  49 

itself,  in  the  first  place,  the  substance  of  the  right  sought  to  be  en- 
forced; and,  in  the  second  place,  whether  its  enforcement  would, 
either  directly  or  indirectly,  involve  the  execution  of  the  penal  law 
of  another  state.  Were  any  other  principle  to  guide  its  decision,  a 
court  might  find  itself  in  the  position  of  giving  effect  in  one  case,  and 
denying  effect  in  another,  to  suits  of  the  same  character,  in  consequence 
of  the  causes  of  action  having  arisen  in  different  countries,  or  in  the 
predicament  of  being  constrained  to  give  effect  to  laws  which  were, 
in  its  own  judgment,  strictly  penal." 

In  this  view,  that  the  question  is  not  one  of  local,  but  of  inter-  i~~ZjL^ 

national,  law,  we  fully  concur.    ^The  test  is  not  by  what  name  the    /   o)*-^   Uc/^'^ 
statute  is  called  by  the  Legislature  or  the  courts  of  the  state  in  which 
it  was  passed,  but  whether  it  appears,  to  the  tribunal  which  is  called 
upon  to  enforce  it,  to  be,  in  its  essential  character  and  effect,  a  punish- 
ment of  an  off'enseagginst  the  public,  or  a  grant  of  a  civil  ^rigfit  to  a  ^ 
"prTvate  person.  i 

Tn  this  country,  the  question  of  international  law  must  be  determined  y%^»JUS^  ^ 
in  the  first  instance  by  the  court,  state  or  national,  in  which  the  suit  .  ^yr^^ 
is  brought.  If  the  suit  is  brought  in  a  Circuit  Court  of  the  United  V*"^^  '  t 
States,  it  is  one  of  those  questions  of  general  jurisprudence  which  that  '  -  '*^^^^ 
court  must  decide  for  itself,  uncontrolled  by  local  decisions.  Burgess 
v.  Sehgman,  107  U.  S.  20,  33,  2  Sup.  Ct.  10,  27  L.  Ed.  359 ;  Texas  & 
P.  Ry.  Co.  V.  Cox,  145  U.  S.  593,  605,  12  Sup.  Ct.  905,  36  L.  Ed. 
829 ;  above  cited.  If  a  suit  on  the  original  liability  under  the  statute 
of  one  state  is  brought  in  a  court  of  another  state,  the  Constitution  and 
laws  of  the  United  States  have  not  authorized  its  decision  upon  such 
a  question  to  be  reviewed  by  this  court.  New  York  Life  Ins.  Co.  v. 
Hendren,  92  U.  S.  286,  23  L.  Ed.  709 ;  Roth  v.  Ehman,  107  U.  S.  319. 
2  Sup.  Ct.  312,  27  L.  Ed.  499.  But  if  the  original  liability  has  passed 
into  judgment  in  one  state,  the  courts  of  another  state,  when  asked  to 
enforce  it,  are  bound  by  the  Constitution  and  laws  of  the  United  States 
to  give  full  faith  and  credit  to  that  judgment ;  and,  if  they  do  not,  their 
decision,  as  said  at  the  outset  of  this  opinion,  may  be  reviewed  and 
reversed  by  this  court  on  writ  of  error.  The  essential  nature  and  real 
foundation  of  a  cause  of  action,  indeed,  are  not  changed  by  recovering 
judgment  upon  it.  This  was  directly  adjudged  in  Wisconsin  v.  Peli- 
can Ins.  Co.,  above  cited.  The  difference  is  only  in  the  appellate 
jurisdiction  of  this  court  in  the  one  case  or  in  the  other. 

If  a  suit  to  enforce  a  judgment  rendered  in  one  state,  and  which 
has  not  changed  the  essential  nature  of  the  liability,  is  brought  in  the 
courts  of  another  state,  this  court,  in  order  to  determine,  on  writ  of 
error,  whether  the  highest  court  of  the  latter  state  has  given  full  faith 
and  credit  to  the  judgment,  must  determine  for  itself  whether  the 
original  cause  of  action  is  penal,  in  the  international  sense.  The  case, 
in  this  regard,  is  analogous  to  one  arising  under  the  clause  of  the 
Constitution  which  forbids  a  state  to  pass  any  law  impairing  the  obliga- 

LOK.CONF.L. — 4 


('■■ 


aO  GENERAL  PROVISIONS.  (Part   1 

tioii  of  contracts,  in  which,  if  the  highest  court  of  a  state  decides 
nothing  but  the  original  construction  and  obhgation  of  a  contract,  this 
court  has  no  jurisdiction  to  review  its  decision;  but  if  the  state  court 
gives  effect  to  a  subsequent  law,  which  is  impugned  as  impairing  the 
obligation  of  a  contract,  this  court  has  power,  in  order  to  determine 
whether  any  contract  has  been  impaired,  to  decide  for  itself  what  the 
true  construction  of  the  contract  is.  New  Orleans  Water-Works  Co. 
V.  Louisiana  Sugar-Refining  Co.,  125  U.  S.  18,  38,  8  Sup.  Ct.  741,  31 
L.  Ed.  607.  So  if  the  state  court,  in  an  action  to  enforce  the  original 
liability  under  the  law  of  another  state,  passes  upon  the  nature  of 
that  liability,  and  nothing  else,  this  court  cannot  review  its  decision; 
but  if  the  state  court  declines  to  give  full  faith  and  credit  to  a  judg- 
ment of  another  state,  because  of  its  opinion  as  to  the  nature  of  the 
cause  of  action  on  which  the  judgment  was  recovered,  this  court,  in 
determining  whether  full  faith  and  credit  have  been  given  to  that 
judgment,  must  decide  for  itself  the  nature  of  the  original  lia- 
bility.    *     *     * 

The  judgment  rendered  by  a  court  of  the  state  of  New  York,  now 
in  question,  is  not  impugned  for  any  want  of  jurisdiction  in  that  court. 
The  statute  under  which  that  judgment  was  recovered  was  not,  for 
the  reasons  already  stated  at  length,  a  penal  law,  in  the  international 
sense.  The  faith  and  credit,  force  and  effect,  which  that  judgment 
had  by  law  and  usage  in  New  York  was  to  be  conclusive  evidence  of 
a  direct  civil  liability  from  the  individual  defendant  to  the  individual 
plaintiff  for  a  certain  sum  of  money,  and  a  debt  of  record,  on  which 
an  action  would  lie,  as  on  any  other  civil  judgment  inter  partes.  The 
Court  of  Appeals  of  Maryland,  therefore,  in  deciding  this  case  against 
the  plaintiff,  upon  the  ground  that  the  judgment  was  not  one  which 
it  was  bound  in  any  manner  to  enforce,  denied  to  the  judgment  the 
full  faith,  credit,  and  effect  to  which  it  was  entitled  under  the  Consti- 
tution and  laws  of  the  United  States. 

Judgment  reversed,  and  case  remanded  to  the  Court  of  Appeals  of 
the  state  of  Maryland  for  further  proceedings  not  inconsistent  with 
the  opinion  of  this  court.® 

8  Fuller,  C.  .T.,  disseuted  (opinion  omitted).  Lamar  and  Shiras,  J  J.,  did 
not  sit. 

Another  principle  operating  to  modify  the  application  of  the  general  rules 

governing  the  Conflict  of  Laws  is  found  in  the  doctrine  of  the  federal  courts 

according  to  which  they  decline  in  matters  of  general  commercial  law,  or 

f  l\y        r>^^  general,   instead  of  local,   law,   to   follow  the   principles  adopted   by  the 

,     tK^i/  ■  \  courts  of  the  state  where  the  cause  of  action  arose.     Swift  v.  Tyson,  16  Pet. 

"^  )l,  10  L.  Ed.  805  (1842);    Baltimore  &  Ohio  R.  Co.  v.  Baugh,  149  U.  S.  368, 

\  13  Sup.  Ct.  914,  37  L.  FA.  772  (1893). 

\  A  shnilar  exception  is  recognized  by  a  few  of  the  state  courts.  Franklin 
'  V.  Twogood,  25  Iowa,  520,  96  Am.  Dec.  73  (1868) ;  St.  Nicholas  Bank  v.  State 
Nat.  Bank,  128  N.  Y.  26,  27  N.  E.  849,  13  L.  R.  A.  241  (1891) ;  Roads  v. 
Webb,  91  Me.  400,  40  Atl.  128,  64  Am.  St.  Rep.  246  (1898).  But  not  generally. 
Foi-epaugh  v.  Delaware,  L.  &  W.  R.  Co.,  128  Pa.  217,  18  Atl.  503.  5  L.  R.  A. 
508,  15  Am.  St.  Rep.  672  (1889) ;  Limerick  Nat.  Bank  v.  Howard,  71  N.  H. 
13,  51  Atl.  641,  93  Am.  St.  Rep.  489  (1901). 


,^ 


Ch.  3)  PROCEDURE.  51 

CHAPTER  m. 
PROCEDURE. 


6  7 


MALE  V.  ROBERTS. 

(Nisi  Prius,  in  the  Common  Pleas.     1800,  3  Esp.,  163.) 

Assumpsit  for  money  paid,  laid  out,  and  expended,  to  the  use  of  the 
defendant;  money  lent  and  advanced,  with  the  other  common  money 
counts. 

Plea  of  the  general  issue. 

The  case,  as  opened  by  the  plaintiff's  counsel,  was,  that  the  plaintiff 
and  the  defendant  were  performers  at  the  Royal  Circus.  While  the 
company  were  performing  at  Edinburgh,  in  Scotland,  the  defendant 
had  become  indebted  to  one  Cockburn,  for  liquors  of  different  sorts, 
with  which  Cockburn  had  furnished  him ;  not  having  discharged  the 
debt,  and  it  being  suspected  that  the  defendant  was  about  to  leave  Scot- 
land, Cockburn  arrested  him,  by  what  is  there  termed  a  Writ  of  Fuge, 
the  object  of  which  is  to  prevent  the  debtor  from  absconding. 

The  defendant  being  then  unable  to  pay  the  money,  the  plaintiff  paid 
it  for  him;  and  he  was  liberated.  The  present  action  was  brought  to 
recover  the  money  so  paid,  as  'money  paid  to  his  use. 

The  defence  relied  upon  was,  that  the  defendant  was  an  infant  when 
the  money  was  so  advanced. 

Lord  Eldon.  It  appears  from  the  evidence  in  this  cause,  that  the 
cause  of  action  arose  in  Scotland ;  the  contract  must  be  therefore  gov-      ^^^f^  ^ 

erned  by  the  laws  of  that  country  where  the  contract  arises.     Would      jL-'^*  <\'*" 
infancy  be  a  good  defence  by  the  law  of  Scotland,  had  the  action  been 
commenced  there  ? 

Best,  Sergeant,  for  the  defendant,-  contended,  that  the  contract  was 
to  be  governed  by  the  laws  of  England ;   in  which  case,  the  plaintiff     jOjLW  J^^^''^ 
could  recover  for  necessaries  only.    That  at  all  events  it  should  not  be       _  ^     y^^  ^>, 
presumed  that  the  laws  were  different ;  and  as  it  appeared  that  the  debt 
did  not  accrue  for  necessaries,  the  plaintiff  could  neither  recover  on  the 
counts  for  money  paid,  or  for  money  lent  to  an  infant.  ^    ^r^jf"-^^'^^ 

Lord  Eldon.    What  the  law  of  Scotland  is  with  respect  to  the  right**  '     i^^ ^U^ 
of  recovering  against  an  infant  for  necessaries,  I  cannot  say;    but  if    Vft*'^'*^ 
■  the  law  of  Scotland  is,  that  such  a  contract  as  the  present  could  not  be 
enforced  against  an  infant,  that  should  have  been  given  in  evidence; 
and  I  hold  myself  not  warranted  in  saying^ that  such  a  contract  is  void  fi/O^ 

by  the  law  of  Scotland,  because  it  is  void  by  the  law  of  England.    The    V    -^ 


52  GENERAL  PROVISIONS.  (Part  1 

law  of  the  country  where  the  contract  arose,  must  govern  the  contract ; 
an3  what  that  law  is,  should  be  given  in  evidence  to  me  as  a  fact.  No 
such  evidence  has  been  given ;  and  I  cannot  take  the  fact  of  what  that 
law  is,  without  evidence. 

The  plaintiff  failed  in  proving  his  case,  and  was  nonsuited.*- 

lAccord :  Thompson  v.  Ketchnm,  8  Johns.  (N.  Y.)  189,  5  Am.  Dec.  332  (1811). 
See,  in  general,  113  Am.  St.  Rep.  868-884 ;  67  L.  R.  A.  33-61. 

In  suits  upon  foreign  judgments  some  courts  will,  by  way  of  exception, 
take  judicial  notice  for  some  purposes  of  the  laws  of  another  state.  Paine 
V.  Schenectady  Ins.  Co.,  11  R.  I.  411  (1876).  Black  on  Judgments  (2d  Ed.) 
§§  860,  917. 

As  to  judicial  notice  by  the  federal  courts,  see  Owings  v,  Hiull,  9  Pet.  (U. 
S.)  607,  9  L.  Ed.  246  (1835) ;  Hanley  v.  Donoghue,  116  U.  S.  1,  6  Sup.  Ct. 
242,  29  L.  Ed.  535  (1885). 

In  the  absence  of  proof  of  the  foreign  law,  courts  will  often  presume  that 
it  is  identical  with  the  common  law  as  understood  at  the  forum.  Flagg  v. 
Baldwin,  38  N.  J.  Eq.  219,  48  Am.  Rep.  308  (1884);  Commonwealth  v.  Gra- 
•  ham,  157  Mass.  73,  31  N.  E.  706,  16  L.  R.  A.  578,  34  Am.  St.  Rep.  255  (1892) ; 
Vanderpoel  v.  Gorman.  140  N.  Y.  563,  35  N.  E.  932,  24  L.  R.  A.  548,  37  Am. 
St.  Rep.  601  (1894).  Provided,  however,  that  the  jurisprudence  of  such  for- 
eign state  rests  essentially  upon  the  common  law.  Aslanian  v.  Dostumian, 
174  Mass.  328,  54  N.  E.  845,  47  L.  R.  A.  495,  75  Am.  St.  Rep.  348  (1899). 
If  the  foreign  law  rests  essentially  upon  some  other  system  of  law,  the 
general  law  of  the  forum,  whether  common-law  or  statutory,  will  usually 
be  applied.  Brown  v.  Wright,  58  Ark.  20,  22  S.  W.  1022,  21  L.  R.  A.  467 
(1893) ;  Peet  &  Co.  v.  Hatcher,  112  Ala.  514,  21  South.  711,  57  Aju.  St.  Rep. 
45  (1896).  Some  courts  apply  the  law  of  the  forum,  whether  common-law 
or  statutory,  irrespective  of  the  general  nature  of  the  foreign  system  of 
law.  Bagwell  v.  McTighe,  85  Tenn.  616,  4  S.  W.  46  (1887);  Cavallaro  v. 
Texas  &  P.  R.  Co.,  110  Cal.  348,  42  Pac.  918.  52  Am.  St.  Rep.  94  (1895) ;  Bar- 
ringer  V.  Ryder,  119  Iowa,  121,  93  N.  W.  56  (1903).  But  not  in  the  case  of 
.statutes  prescribing  penalties  or  forfeitures.  Hubble  v.  Morristown  Land  & 
Improvement  Co.,  95  Tenn.  595,  32  S.  W.  965  (1895). 

A  statute  of  another  state  creating  a  cause  of  action  not  existing  at  com- 
mon law,  must  be  proved,  and  no  presumption  will  applv.  Morgan  v.  Beau- 
mont, 121  Mass.  7  (1876) ;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Betts,  10  Colo.  431, 
15  Pac.  821  (1887) ;  Myers  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  69  Minn.  476, 
7^  N.  W.  694,  65  Am.  St.  Rep.  579  (1897). 
^C^  Continental  Law. — Foreign  law  must  generally  be  proved  by  the  parties  as 
T  a  fact,  and  in  the  absence  of  such  proof  the  lex  fori  will  be  applied.  France. 
y  — App.  Pan,  Feb.  14,  1882  (S.  1884,  2,  129) ;  Trib.  Civ.  Seine,  July  18,  1885  (13 
Clunet,  202).  Italy.— Cass.  Turin,  Nov.  9,  1891  (La  Legge,  1892,  1,  83) ;  but  the 
parties  need  not  prove  it,  if  it  is  well  known  to  the  judge.  App.  Turin,  Dec.  7, 
1804  (Giurispr.  Ital.  1895,  2,  127).  Qermany.— Section  293,  Code  Civ.  Proc, 
requires  rlie  judge  ex  officio  to  inform  himself  with  respect  to  the  foreign 
law ;  but  it  has  been  held  that,  where  the  parties  fail  to  prove  the  foreign  law, 
the  lex  fori  may  be  applied,  in  the  absence  of  personal  knowledge  of  such 
foreign  law  on  the  part  of  the  judge.  2  R.  O.  II.  G.  27  (Feb.  14,  1871).  See, 
also,  Planck,  Biirgerliches  Gesetzbuch  (3d  Ed.)  vol.  VI,  art.  7-31,  8  (p.  27). 

A  mistake  made  by  the  trial  judge  with  respect  to  a  foreign  law  is,  there- 
fore, not  subject  to  revision  by  the  courts  of  last  resort.  France. — Cass.  June 
15,  1899  (S.  1901,  1,  303) ;  Cass.  July  18,  1904  (2  Darras,  544).  See  Cass.  Aug. 
2,  1893  (S.  1895,  1,  449).  Germanij.— Sections  549,  562,  Code  Civ.  Proc. 
Contra:  Italy. — At  least  if  the  judge  is  specifically  directed  to  apply  such 
foreign  law.  Cass.  Florence,  Apr.  25,  1881  (Monitore,  1881,  p.  601) ;  Cass. 
Naples,  Jan.  26,  1897  (Monitore,  1897,  p.  466). 

See,  also.  A,  Darras,  De  la  connaissance,  de  I'apiJlication  et  de  la  preuve 
de  la  loi  Strangere.    28  Clunet,  209^231,  442-456. 


Ch.  3)  PKOCEDURE.  53 


RUHE  V.  BUCK. 

(Supreme  Court  of  Missouri,  1S94.    124  Mo.  178,  27  S.  W.  412,  25  L.  R.  A.  178, 

46  Am.  St.  Rep.  439.) 


-A 


Gantt^  p.  J.^  This  record  presents  this  case :  At  the  time  of  the 
transactions  involved,  a  married  woman  in  Missouri  was  incompetent 
to  make  a  valid  contract  at  law.  At  that  time,  however,  she  was  au- 
thorized by  the  laws  of  Dakota  to  contract  as  a  feme  sole,  and  sue  and 
be  sued  as  such.  Mrs.  Buck,  the  wife  of  O.  W.  Buck,  became  the  pur- 
chaser of  a  city  lot  in  Tarkio,  Mo.,  and  held  a  bond  for  title  from 
Perkins,  the  owner,  until  a  balance  of  the  purchase  money  should  be  JirVlawii^* 

paid.  Under  the  firm  name  of  O.  W.  Buck  &  Co.,  Mrs.  Buck  and  her  ./^.^^  .  o-^^ 
husband  became  indebted  in  Dakota,  and  the  interest  of  herself  and  her  Att^^^**^ 
husband  in  said  lot  was  attached  for  said  debt,  in  an  action  commenc- 
ed in  the  circuit  court  of  Atchison  county,  Mo.  After  this  attachment 
was  levied  on  the  lot,  Mrs.  Buck  sold  the  lot  to  Thompson  and  Trout, 
who  afterwards  paid  the  balance  of  the  purchase  money  to  Perkins,  and 
received  a  warranty  deed  from  Perkins,  which  was  recorded.  That 
a  married  woman  was  not  subject  to  a  suit  by  attachment  in  Missouri 
prior  to  1889  was  decided  by  this  court  in  Gage  v.  Gates,  63  IMo.  412 ; 
and  that  a  judgment  obtained  against  her  in  such  a  proceeding  was  a 
nullity  was  repeated  in  Lincoln  v.  Rowe,  64  Mo.  138 ;  and  that  she 
could  not  be  sued  as  a  member  of  a  mercantile  firm  at  law  was  also  set- 
tled in  Weil  v.  Simmons,  66  Mo.  617.  From  these  and  many  other  de- 
cisions, it  would  appear  that  no  resident  creditor  could  proceed  by  an 
attachment  at  law  against  a  married  woman  in  this  state  for  a  debt 
contracted  in  this  state,  and  this  record  presents  the  question  whether 
our  laws  will  give  nonresident  creditors  remedies  to  collect  their  claims 
against  a  married  woman  in  this  state,  which  we  uniformly  deny  to 
our  own  citizens.  The  Supreme  Court  of  the  United  States  in  Scud- 
der  v.  Union  Nat.  Bank  of  Chicago,  91  U.  S.  406,  23  L.  Ed.  245,  sums 
up  the  general  principle  in  a  few  words:  "Matters  bearing  upon  the 
execution,  the  interpretation,  and  the  validity  of  a  contract  are  deter- 
mined by  the  law  of  the  place  where  the  contract  is  made.  Mat- 
ters connected  with  its  performance  are  regulated  by  the  law  pre- 
vailing at  the  place  of  performance.  INIatters  respecting  the  rem- 
edy, such  as  bringing  of  suits,  admissibility  of  evidence,  statutes  of 
limitation,  depend  upon  the  law"  of  the  place  where  the  suit  was 
brought."  So  that  while  we  concede  that,  by  the  laws  of  Dakota, 
'Mrs.  Buck  could  enter  into  a  contract  of  partnership  with  her  hus- 
15and,  and  become  bound  for  the  debts  of  that  partnership,  the  ques- 
tion remains,  when  the  creditors  sue  her  in  this  state,  are  they  bound 
to  take  such  remedies,  and  such  only,  as  our  laws  offer  against  a  mar- 
ried woman  (for  such  she  remains,  notwithstanding  her  capacity  to  con- 

2A  part  of  the  Dpinion  and  tlie  dissenting  opinion  of  Slierwood,  J.,  have 
been  omitted. 


54  •  GENERAL  PROVISIONS.  (Part  1 

tract  and  sue  and  be  sued),  or  are  we  bound  to  treat  her  as  a  single 
person  ?  Judge  Story,  in  his  treatise  on  the  Conflict  of  Laws  (8th  Ed., 
§  556),  says:  "Having  stated  these  general  principles  in  relation  to 
jurisdiction  (the  result  of  which  is  that  no  nation  can  rightfully  claim 
to  exercise  it  except  as  to  persons  and  property  within  its  own  do- 
mains), we  are  next  led  to  the  consideration  of  the  question  in  what 
manner  suits  arising  from  foreign  causes  are  to  be  instituted  and  pro- 
ceedings to  be  had  until  the  final  judgment.  Are  they  to  be  according 
to  the  law  of  the  place  where  the  parties,  or  either  of  them,  live,  or  are 
they  to  be  according  to  the  modes  of  proceeding  and  forms  of  suit  pre- 
scribed by  the  laws  of  the  place  where  the  suits  are  brought?  For- 
tunately, here  there  is  scarcely  any  ground  left  open  for  controversy, 
either  at  the  common  law  or  in  the  opinions  of  foreign  jurists  or  in 
the  actual  practice  of  nations.  It  is  universally  admitted  and  estab- 
lished that  the  forms  of  remedies  and  modes  of  proceeding  and  the  ex- 
ecution of  judgments  are  to  be  regulated  solely  and  exclusively  by  the 
laws  of  the  place  where  the  action  is  instituted,  or  *  *  *  accord- 
ing to  the  lex  fori."  / 

[The  learned  justice  here  commented  upon  Williams  v.  Haines,  27  } 

Iowa,  251,  1  Am.  Rep.  268 ;    Mathuson  v.  Crawford,  4  McLean,  540,  V* 

Fed.  Cas.  No.  9,279;    Mineral  Point  R.  Co.  v.  Barron,  83  111.  365;  y 

Burchard  v.  Dunbar, '82  111.  450,  25  Am.  Rep.  334;   Millikerijv,.Pratt,  J^t  C/ 
125  Mass.  374,  28  Am.  Rep.  241.]  "  ~Zt(jiM'*^ 

That  the  law  of  the  forum  governs  as  to  remedies  in  the  enforce- 
ment of  contracts,  see,  also,  Pickering  v.  Fisk,  6  Vt.  102 ;  Commercial 
Nat.  Bank  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  45  Wis.  172 ;  Leiber  v. 
Union  Pac.  R.  Co.,  49  Iowa,  688 ;  Denny  v.  Faulkner,  22  Kan.  89 ; 
GreeiLvJati  ■Bn.skirk,  J  Wall.  (U.  S.)  307,  18  L.  Ed.  599;  Whart. 
ConflTLaws,  §  121 ;  Bank  of  United  States  v.  Donnally,  8  Pet.  (U.  S.) 
362,  8  L.  Ed.  974;  Laird  v.  Hodges,  26  Ark.  356.  A  case  very  similar 
to  this  arose  in  Illinois.  An  action  at  law  was  brought  against  a  married 
woman.  She  pleaded  coverture  at  the  time  of  making  the  contract  and 
the  commencement  of  the  action.  Reply :  "Contract  good  by  the  laws 
of  Iowa,  where  it  was  made,  and  a  liabiHty  to  suit  as  a  feme  sole  in 
that  state."  Discussing  the  sufficiency  of  this  reply,  the  Supreme  Court 
of  Illinois  said :  "A  party  seeking  to  enforce  a  contract  valid  by  the 
laws  of  another  state  must  avail  of  the  remedy  provided  by  our  laws. 
:;;  *  *  That  part  of  the  replication  which  alleges  that,  by  the  laws  of 
the  state  of  Iowa,  a  married  woman  could  be  sued  alone  on  contracts 
concerning  her  separate  property,  did  present  an  immaterial  issue."  But 
because,  by  the  laws  of  Illinois,  she  could  be  sued  alone,  it  was  held 
that  enough  remained  to  make  a  good  replication.  Halley  v.  Ball,  66 
111.  250.  A  different  conclusion  was  reached  in  Robinson  v.  Queen,  87 
Tenn.  445,  11  S.  W.  38,  3  L.  R.  A.  214,  10  Am.  St.  Rep.  690,"although 
the  court  recognized  the  rule  already  stated,  in  these  words :  "Under 
this  rule,  we  act  in  requiring  the  husband  to  be  a  party  defendant 
with  the  wife,  as  was  done  in  the  case  at  bar.    While  under  the  laws  of 


Ch.  3)  PROCEDURE.  55 

Kentucky,  this  married  woman  has  had  her  disabilities  removed,  and 
can  contract,  sue,  and  be  sued  as  a  feme  sole,  we  recognize  and  en- 
force in  this  state  [Tennessee]  so  much  of  the  foreign  law  as  deter- 
mines and  fixes  her  liability — in  other  words,  the  law  of  the  contract; 
but  in  enforcing  such  liability  in  the  courts  of  this  state,  if  she  is  plain- 
tiff, she  must  sue  by  next  friend  or  with  her  husband,  and,  as  defend- 
ant, her  husband  must  be  joined  with  her  as  a  party."  In  other  words, 
her  status  as  a  married  woman,  by  the  laws  of  Tennessee,  still  remain- 
ed, and  the  remedies  there  given  against  a  married  woman  controlled. 
That  was  a  proceeding  in  a  chancery  court,  and  we  are  not  sufficiently 
advised  of  the  practice  in  that  state  to  draw  any  conclusion  as  to  its 
persuasiveness  as  an  authority  for  the  practice  here  invoked.  The  gen- 
eral principle  announced  is  in  harmony  with  the  rule  heretofore  deduc- 
ed. In  Gibson  v.  Sublett,  82  Ky.  596,  the  Court  of  Appeals  of  Ken- 
tucky held  a  married  woman  personally  liable  in  Kentucky  on  a  note 
executed  in  Louisiana,  although,  if  she  had  made  the  note  in  Ken- 
tucky, her  promise  would  have  been  void.  The  reasons  for  this  deci- 
sion are  tersely  stated  by  the  court.  They  say:  "And  if,  by  the  law 
of  the  place  of  the  domicile  of  the  husband,  a  married  woman  has  a 
capacity  to  sue  or  to  make  a  contract  or  to  ratify  an  act,  her  acts  so 
done  will  be  held  valid  everywhere.  Story,  Confl.  Laws,  §  66a.  If, 
then,  the  contract  is  to  be  held  valid  and  binding  here  because  it  is  so 
in  the  state  where  it  was  made,  it  would  seem  to  reasonably  follow  that 
her  property  here  should  be  subject;  for  to  hold  that  a  valid  and 
binding  contract  is  not  enforceable  at  any  time  nor  in  any  manner  is  ab- 
surd." And  the  court  consequently  held  "that  the  remedy  provided 
for  the  satisfaction  of  judgments  in  Kentucky  should  be  applied  as 
though  the  judgment  was  against  a  feme  sole."  Entertaining,  as  we 
do,  the  highest  respect  for  the  court  that  decided  this  case,  we  do  not 
think  its  reasoning  convincing  in  that  case.  In  our  opinion,  it  has 
mingled  the  "lex  loci  contractus"  with  the  "lex  fori,"  which  are  distinct 
in  their  nature  and  obligation,  and  treats  them  as  one.  We  do  not  think 
that  many  other  courts  have  gone  so  far.  The  rule  which  recognizes 
the  binding  force  of  the  contract  where  made  has  never  gone  to  the  ex- 
tent of  attaching  to  it  the  local  remedies,  and  carrying  them  into  an- 
other jurisdiction,  but  it  is  left  to  each  nation  and  state  to  enforce  such 
a  contract  according  to  its  own  laws. 

As  already  said,  when  this  action  was  brought,  this  court  had,  by  uni- 
form decisions,  held  that  a  married  woman  could  not  be  sued  by  attach- 
ment in  actions  at  law  in  Missouri.  No  such  remedy  was  available  in 
our  courts  in  favor  of  resident  creditors.  Had  any  citizen  of  Missouri, 
on  a  contract  made  or  to  be  performed  in  this  state,  proceeded  by  at- 
tachment at  law  against  this  real  estate,  no  lien  would  have  been  creat- 
ed, and  no  valid  judgment  could  have  been  rendered  against  ]\Irs.  Buck, 
and  no  purchaser  for  value  would  have  been  affected ;  but,  if  plaintiff's 
contention  is  true,  the  fact  that  this  claim  originated  in  Dakota  has 
changed  all  this,  and  his  attachment  is  as  valid  as  if  Mrs.  Buck  was  a 


56  GENERAL   PROVISIONS.  (Part  1 

single  woman.  But  Mrs.  Buck  is  still  a  married  woman,  and  there  was 
no  such  exception  in  our  Code  of  Procedure  in  favor  of  contracts  exe- 
cuted beyond  our  borders  when  this  suit  was  brought,  and  an  attempt  to 
enforce  such  a  distinction  out  of  a  spirit  of  comity  would  create  end- 
less confusion,  A  purchaser's  rights  ought  not  to  depend  upon  the  ac- 
cidental circumstance  of  the  place  of  the  execution  of  the  contract"  upon 
which  the  judgment  is  based.  Our  courts  administer  justice  without 
distinction,  according  to  the  modes  prescribed  by  the  state,  and  those 
who  seek  them  must  take  such  remedies  as  are  prescribed.  An  infant's 
contract  may  be  good  in  Illinois,  but,  if  he  is  sued  in  Missouri,  he  is 
proceeded  against  as  an  infant,  by  next  friend  or  guardian.  His  stat- 
us, for  the  purposes  of  the  action,  is  determined  by  our  laws  in  force 
when  the  suit  is  brought.  It  follows  that  the  circuit  court  properly 
held  that  the  proceedings  by  attachment  against  Mrs,  Buck  were  void, 
and  hence  presented  no  obstacle  to  the  purchase  by  Trout  and  Thomp- 
son, and  its  judgment  is  affirmed.^ 


SAUNDERS  V.  AMERICAN  EXPRESS  CO. 

(Supreme  Court  of  New  Jersey,  1904,    71  N,  J.  Law,  270,  57  Atl.  899.) 

C/O  •        SwAYZE,  J.    In  this  case  I  allowed  a  rule  to  show  cause  why  the  serv- 
/\    (31  ^  '  O  -.  ice  of  a  summons  should  not  be  set  aside,  and  made  the  rule  returna- 

^  '     .      ^'  ft  '      ble  before  me  at  chambers.    Depositions  were  taken,  and  the  matter  ar- 
/yu^  '    *^     gued  in  pursuance  of  the  rule. 

L**^  '^^^  ground  relied  upon  for  setting  aside  the  summons  is  that  the  de- 

lAr*      «,-/*^  fendant  is  not  a  corporation,  but  a  joint-stock  association,  organized 

'^^jj^/^^^^'^^y^  under  the  laws  of  New  York,  and  it  is  contended  that  the_suit_should 

I*'      Jf^  have  been  broughtagainstjhe  president  or  treasurer  by  Dame,_j)ursuant 

AP^^\    '    ■  toTTiF^provisions  of  the  New.  York-Code  authorizing  that  procedurje. 

^  V^  The  case  of  Edgeworth  v.  Wood,  58  N.  J.  Law,  463,  33  Atl.  940,  was 

'^  relied  upon.    In  that  case  an  action  was  brought  against  "Theodore  F. 

Wood,  treasurer  of  the  United  States  Express  Company,"  for  a  tort 
for  which  the  express  company  was  liable.  After  verdict  for  the  plain- 
tiff it  was  argued,  upon  a  rule  to  show  cause,  that  the  action  should 
have  been  brought  against  the  United  States  Express  Company  by  that 
name,  under  our^staiiit^  authorizin^suit  against  unincorpqrated_£u:=. 
,  gajuzatiQn^_by;Jheir  recogiTIzed_ name^  The  only  question  actually  pre- 
sented was  whether  a~cause  of  action  which  existed  against  the  organ- 
ization could  form  the  basis  of  a  suit  in  name  against  one  of  its  offi- 
cers, and  the  proceedings  were  sustained  because  the  procedure  was 
that  provided  by  the  New  York  statute.  I  do  not  understand  that  the 
court  decided  that  it  would  have  been  improper  to  have  sued  the  ex- 
press company  by  its  recognized  name ;  on  the  contrary,  the  reasoning 

«  See  57  L.  R.  A.  520-523. 


t 


Ch.  3)  PKOCEDURE.  57 

of  the  court  was  that  the  express  company  was,  by  virtue  of  the  New 
York  statutes,  a  corporate  entity,  and  that  the  status  of  Wood  was  that 
of  a  representative  of  the  company.  The  construction  adopted  by  the 
court  was  based  upon  a  New  York  statute,  chapter  258  (238  in  the  re- 
port is  evidently  a  misprint),  p.  389,  of  the  Laws  of  1849,  and  upon  two 
sections  of  the  Code  of  Procedure,  which  statutes  were  put  in  evidence. 
In  the  present  case  later  statutes  were  put  in  evidence  by  counsel  for 
the  plaintiff,  and  it  now  appears  that  the  act  of  1849  was  repealed  in 
1880  (page  367,  c.  245).  The  history  of  the  New  York  legislation  is 
important.  The  act  of  1849  provided  that  any  joint-stock  company  or 
association  might  sue  and  be  sued  in  the  name  of  the  president  or 
treasurer,  but  reserved  to  the  plaintiff  the  right,  after  judgment  against 
the  association,  to  sue  all  or  any  of  the  shareholders  individually,  and 
also  the  right  to  proceed  in  the  first  instance  against  the  persons  con- 
stituting the  jomt-stock  company  or  association.  In  1853,  by  chapter 
153,  p.  283,  of  the  Statutes,  it  was  made  obligatory  to  proceed  in  the 
first  instance  against  the  president  or  treasurer,  and  only  in  the  event 
of  a  judgment  and  an  execution  returned  unsatisfied  could  an  action  be 
brought  against  the  shareholders  or  associates  individually.  This  act 
also  was  repealed  in  1880  (chapter  245).  The  present_  Code  of  Civil 
Procedure,  by  section  1919,  authorizes  suits  against  the__association  in 
the  name  of  the  president  and  treasurer,  as  byTIie  act'ofl849,  but  in  j  1«|  tl  CU^^ 
sections  1922  and  1923  modifies  the  act  of  1853,  so  thaMt_is_noJong£r 
obligatory  to  bring  suiX.in  the  first Jnstance  agaitTsFthe  president  or 
treasurer^  The  plaintiff  is  given  his  choice  to  bring  a  suit  against  the 
association  in  the  name  of  the  president  or  treasurer,  or  to  bring  his 
suit  against  all  the  members  of  the  association.  As  was  said  by  Judge 
Finch,  in  People  ex  rel.  Winchester  v.  Coleman,  133  N.  Y.  279,  31  N. 
E.  96,  97,  16  L.  R.  A.  183 :  "Permission  to  sue  their  president  or  treas- 
urer is  only  a  convenient  mode  of  enforcing  that  liability,  but  in  no  man- 
ner creates  or  raises  it.  The  statute  of  1853  did  interfere  with  it. 
That  act  required,  in  the  first  instance,  a  suit  against  the  president  or 
treasurer,  and  so  a  preliminary  exhaustion  of  the  joint  property.  But 
that  act  was  modal,  and  determined  the  procedure.  It  suspended  the 
common-law  right,  but  recognized  its  existence.  We  so  held  in  With- 
erhead  v.  Allen,  4  Abb.  Dec.  628,  and  at  the  same  time  said  that  the  as- 
sociations werejiotjiiQrBprations.  but  mere  partnership ^concerns^_  Even 
That  mode  of  procedure  has  been  modified  by  the  Code,  so  that  the  cred- 
itor at  his  option  may  sue  the  association  without  first  bringing  his  ac- 
tion against  the  president  or  treasurer."  In  view  of  the  fact  that  the 
plaintiff  h^s  this  option  m  the  state  of  New  York,  we  certainly  cannot 
hold  that  he  is  limited  in  New  Jersey  to  the  method  of  procedure  pre- 
scribed by  the  act  of  1853.  That  procedure  is  permissible  in  this  state 
only  by  comity ;  such  a  procedure  could  not  be  made  obligatory  by  pri- 
vate contract.  Bank  of  Toronto  v.  Manufacturers'  &  Merchants'  Fire 
Association,  63  N  J.  Law,  5,  12,  42  Atl.  761.  As  it  has  not  been  made 
obligatory  by  the  laws  of  New  York,  it  ought  not  to  be  made  obliga- 


H 


1 58  GENERAL  PROVISIONS.  (Part  1 

tory  in  this  state,  especially  as  it  is  not  in  harmony  with  our  modes  OjE 
procedure. 

The  question  of  the  party  to  be  sued  is  one  of  procedure,  and  is  reg- 
ulated by  the  lex  fori.  Harker  v.  Brink,  24  N.  J.  Law,  333 ;  General 
Steam  Navigation  Co.  v.  Guillon,  11  Meeson  &  Welsby,  877  ;  Bullock  v. 
Caird,  L.  R.  10  Q.  B.  276 ;  same  case,  44  L.  J.  Q.  B.  124.  Our  statute 
has  provided  a  method  of  suing  unincorporated  associations  by  Th"err 
recognized  names,  and  we  are  not  bound,  even  though  it  is  permissible 
by  way  of  comity,  to  follow  one  of  the  methods  of  procedure  sanctioned 
by  the  New  York  statute,  to  the  exclusion  of  the  method  of  procedure 
provided  by  our  own  statute.  Since  it  is  not  obligatory  upon  the  plain- 
tiff to  bring  his  suit  against  the  president  or  treasurer,  it  can  make  no 
difference,  for  the  present  purpose,  whether  we  regard  the  defendant 
as  an  unincorporated  organization  (Chapman  v.  Barney,  129  U.  S.  677, 
9  Sup.  Ct.  426,  32  L.  Ed.  800 ;  Great  Southern  Fireproof  Hotel  Co.  v. 
Jones,  177  U.  S.  449,  20  Sup.  Ct.  690,  44  L.  Ed.  482),  a  partnership 
with  some  of  the  powers  of  a  corporation  (People  ex  rel.  Winchester 
V.  Coleman,  133  N.  Y.  279,  31  N.  E.  96,  16  L.  R.  A.  183),  or  as  a  cor- 
poration (Edgeworth  v.  Wood,  58  N.  J.  Law,  463,  33  Atl.  940 ;  Tide 
Water  Pipe  Co.  v.  State  Board  of  Assessors,  57  N.  J.  Law,  516,  31  Atl. 
220,  27  L.  R.  A.  684;  Id.,  59  N.  J.  Law,  269,  39  Atl.  1114).  If  the  de- 
fendant is  an  unincorporated  organization  or  a  partnership,  with  some 
of  the  powers  of  a  corporation,  it  can  be  sued  by  its  recognized  name 
under  section  40  of  the  practice  act  (P.  L.  1903,  p.  545).  If  it  is  a  cor- 
poration, it  can  of  course  be  sued  by  its  corporate  name,  and  whether 
that  name  is  Adams  Express  Company,  or  "Levy  C.  Weir,  President  of 
the  Adams  Express  Company,"  is  of  little  consequence,  if  the  summons 
has  been  actually  served  m  the  manner  pointed  out  by  the  statute.  The 
defect,  if  one  existed,  would  be  amendable.  *  *  *  j  think  the  serv- 
ice of  the  summons  was  properly  made  if  the  defendant  is  an  unin- 
corporated organization.  The  same  service  would  be  effectual  under 
section  88  of  the  corporation  act  (P.  L.  1896,  p.  305)  if  the  defendant 
is  a  corporation.  It  can  make  no  difference  that  the  summons  and  dec- 
laration describe  the  defendant  as  an  unincorporated  organization.  If 
it  is  in  fact  a  corporation,  these  words  may  be  rejected  as  surplusage. 

The  motion  to  set  aside  the  summons  is  denied,  with  costs.* 

4Affirmo(l  on  motion  to  vacate,  Saunders  v,  Adams  Express  Co.,  71  N.  J. 
Law,  520,  58  Atl.  1101. 

See  Taft  v.  Ward,  lOG  Mass.  518  (1871);  Edwards  v.  Warren  Linoline  & 
Gasoline  Works,   ]{>8  Mass.   564,  47  N.   E.   502,  38  L.  R.  A.  701  (1897). 

In  ro  Doetsch  (180G)  2  Ch.  836,  839,  Romer,  J.:  "Now,  from  the  admis- 
sions before  me — and  there  is  no  other  evidence — it  appears  to  me  that  the 
Spanish  law  only  differs  from  the  English  law  in  a  matter  of  procedure. 
The  Spanish  courts  retiuire  that  a  joint  creditor  shall  before  he  seeks  to 
reach  the  estate  of  a  deceased  partner  first  proceed  against  and  exhaust  or 
prove  the  insolvency  of  the  joint  estate.  In  my  opinion,  that  is  a  matter 
of  procedure.  It  is  clear  that  the  Spanish  firm  was  not  a  corporation.  *  *  * 
The  procedure  of  the  Spanish  courts  does  not  bind  the  courts  hei'e;  nor 
does  the  Spanish  law  at  all  affect  the  right  of  a  creditor  here  to  avail  him- 
self of  the  benefits  given  by  the  English  courts  in  administering  estates  here. 
For  that  Bullock  v.  Caird,  L.  R.  10  Q.  B.  276,  is  a  sutficient  authority." 


Ch.  3)  PROCEDURE.  59 

ix.-Aiv  r.UAiN  V.  LOUISVIIXE  &  NASHVILLE  RY.  CO. 

(St.  Louis  Court  of  Appeals,  1S90.    39  Mo.  App.  88.)  /L^/Za^    V*"*-^ 

Action  to  enforce  a  common-law  liability  of  defendant  as  common  -  ^tJ^T  ^^ 
carrier  for  failure  to  deliver  to  the  plaintiff  goods  which  it  had  received 
from  plamtiff's  agent  in  Illinois  to  be  shipped  to  plaintiff  at  St.  Louis, 
Mo.  The  goods  were  destroyed  while  in  transit  by  an  accidental  fire 
at  East  St.  Louis,  111.  The  defendant  set  up  in  his  answer  a  special 
contract  exonerating  it  from  liability.^ 

Thompson,  j.s  *  *  *  i^  ^j^y  view  which  we  may  take  of  the 
question  it  is,  therefore,  clear  that  the  validity  and  interpretation  of 
the  contract  of  aft'reightment,  which  the  defendant  sets  up  in  its  an- 
swer is  governed  by  the  laws  of  Illinois.     *     *     * 

The  statute  of  Illinois,  which  was  put  in  evidence,  is  as  follows : 
"That  whenever  any  property  is  received  by  a  common  carrier,  to  be 
transported  from  one  place  to  another,  within  or  without  this  state, 
it  shall  not  be  lawful  for  such  carrier  to  limit  his  common-law  liabil- 
ity, safely  to  deliver  such  property  at  the  place  to  which  the  same  is 
to  be  transported,  by  any  stipulation  or  limitation  expressed  in  the  re- 
ceipt given  for  such  property."  Hurd,  Rev.  St.  111.  1874,  c.  27,  §  1. 
One  of  the  decisions  of  the  Appellate  Court  of  Illinois,  which  was  put 
in  evidence  by  the  plaintiff',  shows  that,  under  the  law  as  settled  in  that 
state,  "a  common  carrier  can  limit  his  ordinary  liability  only  by  a  spe- 
cial contract,  and  the  acceptance  of  a  receipt  or  bill  of  lading,  with  print- 
ed conditions  or  notice  limiting  the  carrier's  liability,  by  the  owner  or 
shipper  of  goods,  without  dissent,  will  not  establish  such  a  contract     ^^         n  t 

must  be  shown  that  the  shipper  knew  of  and  assented  to  the  exemption,  y^-v^A- 

and  such  assent  must  be  shown  by  other  and  additional  evidence,  and  is 
not  the  subject  of  presumption  from  the  terms  of  the  receipt  alone." 
Western  Transit  Co.  v.  Hosking,  19  111.  App.  GOT.  Ugonjhe  question 
of  what  shall  be  regarded  as  evidence  that  the  shipper  assented  to  ffie 
conditions. in  the  bill  of  lading  or  receipt,  a  decision  of  the  Supreme 
Court  of  Illinois,  also  put  in  evidence  by  the  plaintiff,  is  to  the  effect 
that  evidence  that  the  shipper,  prior  to  the  shipment  in  question,  had 
filled  out  similar  blank  bills  of  lading  for  shipments  which  contained 
the  same  stipulation  in  relation  to  the  property  as  the  one  in  question, 
is  admissible,  as  going  to  show  knowledge  of  the  provision  in  question 
and  the  shipper's  assent  thereto.  Wabash,  St.  L.  &  P.  Ry-  Co.  v.  Jag- 
german,  115  111.  407,  4  N.  E.  611. 

We  must,  therefore,  hold  that  the  stipulations  in  this  contract  of  af- 
freightmeril:',  limiting  the  common-law  liability  of  the  defendant,  were 
void  for  want  of  assent,  unless  the  question,  what  is  to  be  deemed  evi- 
dence of  assent,  is  to  be  determined  by  the  law  of  Missouri  instead  of 
the  law  of  IlHnois.    We  have  met  with  a  decision  of  the  Supreme  Ju- 

6  This  brief  statement  of  facts  has  been  abstracted  from  the  opinion. 
6  Only  a  part  of  the  opinion  is  given. 


/■ 


60  GENERAL   PROVISIONS.  (Part  1 

dicial  Court  of  Massachusetts*  whidi  is  quite  in  point,  to  the  effect  that 
this  question  is  to  be  determined  by  the  law  of  Missouri.  In  that  case 
goods  were  shipped  from  a  place  in  Illinois  to  be  delivered  at  a  place 
in  Massachusetts.  They  were  destroyed  by  fire,  while  yet  in  the  state 
of  Illinois,  in  the  hands  of  the  transportation  company.  There  was  in 
the  contract  of  affreightment,  as  in  the  case  before  us,  a  clause  exon- 
erating the  carrier  from  liability  in  the  case  of  a  loss  by  fire.  The  plain- 
tiff appealed  to  the  rule  of  the  law  of  Illinois,  that  the  mere  fact  of  the 
acceptance  by  the  shipper  of  a  contract  of  affreightment,  containing 
such  a  stipulation,  is  not  evidence  of  assent  by  him  to  its  terms.  By 
the  law  of  Massachusetts  (Grace  v.  Adams,  100  Mass.  505,  97  Am. 
Dec.  117,  1  Am.  Rep.  131),  as  by  the  law  of  Missouri  (Snider  v.  Ad- 
ams Express  Co.,  63  Mo.  Z7() ;  O'Bryan  v.  Kinney,  74  Mo.  125 ;  St. 
Louis,  K.  C.  &  N.  Ry.  Co.  v.  Cleary,  77  Mo.  634,  46  Am.  Rep.  13),  the 
reception  by  the  shipper  of  a  bill  of  lading  containing  such  stipulations 
was  evidence  of  his  assent  to  them.  There  seems  to  have  been  in  that 
case,  as  in  this,  no  affirmative  evidence  other  than  the  acceptance  of  the 
bill  of  lading  of  the  shipper's  assent  to  these  stipulations.  The  ques- 
tion, therefore,  was  whether  the  particular  stipulation  ^as  binding  up- 
on the  plaintiff  according  to  the  law  of  Massachusetts,  or  whether  it 
was  no  part  of  the  contract,  according  to  the  law  of  Illinois.  The  Mas- 
sachusetts court  held  that  the  question  was  to  be  determined  by  the  law 
of  Massachusetts,  and  that  the  stipulation  was,  therefore,  binding. 
The  court  proceeded  upon  the  view  that  the  question  did  not  relate  to 
the  validity  or  interpretation  of  the  contract,  so  as  to  be  determinable 
by  the  rule  of  lex  loci  contractus,  but  that  it  related  to  the  remedy,  and 
was,  therefore,  to  be  determined  by  the  rule  of  the  forum.  In  other 
words,  the  court  treated  it  as  a  mere  rule  of  evidence  or  procedure  per- 
taining to  the  remedy  upon  a  contract. 

While  the  decisions  of  that  state  are  entitled  to  great  respect,  we 
cannot  assent  to  tne  soundness  of  this  conclusion.  The  rule  that  mat- 
ters pertaining  to  the  remedy  are  governed  by  the  forum  always  as- 
sumes that  there  is  a  contract  upon  which  a  remedy  is  sought.  It  can- 
not be  properly  appealed  to,  to  determine  the  question  of  contract  or 
no  contract.  The  question  for  decision  in  that  case,  as  in  the  case  be- 
fore us,  was  whether  a  certain  stipulation  in  an  instrument  of  writing 
was  a  binding  contract. 
*    /     The  governing  principle  by  which  to  determine  that  question  was, 

y/   not  the  rules  of  procedure  of  the  forum,  but  a  rule  of  universal  appli- 
/     cation,  laid  down  by  Mr.  Justice  Story  in  the  statement  that  all  the  for- 
^v         /     malities,  proofs  or  authentications  of  contracts,  which  are  required  by 
_V,  I      the  lex  loci,  are  indispensable  to  their  validity  everywhere  else.    Story,. 

^^  ♦  I       Conflict  of  Laws,  §  2G0.     The  same  rule  is  laid  down  by  another  em- 

/\     inent  writer  on  private  international  law,  thus :    "A  contract,  so  far  as 
\    concerns  its  formal  making,  is  to  be  determined  by  the  place  where  it 
'.  is  solemnized,  unless  the  lex  situs  of  the  property  disposed  of  other- 

•Hoadley  v.  Northern  Transp.  Co..  115  Mass.  304,  15  Am.   Rep.  106    (1874). 


v*^ 


Ch.  3)  PROCEDURE.  61 

wise  requires."  Wharton,  Conflict  of  Laws,  §  401.  The  courts  have 
gone  so  far  as  to  hold  that,  although  the  parties  intended  that  a  certain 
instrument  should  be  a  contract  between  them,  yet  if  the  law  of  the 
place  where  it  was  made  required  it  to  be  stamped,  and  it  was  not 
stamped,  it  would  be  void  in  the  place  where  the  remedy  upon  it  was 
sought.  Alves  v.  Hodgson,  7  T.  R.  241 ;  Clegg  v.  Levy,  3  Camp.  166  ; 
Satterthwaite  v.  Doughty,  44  N.  C.  314,  59  Am.  Dec.  554.  But  the 
rule  cannot  be  made  plainer  by  illustrations  than  it  can  by  a  mere  state- 
ment of  it.  Many  cases  illustrating  the  rule  are  cited  by  Story  and 
Wharton  in  support  of  their  respective  statements  of  it.  The  rule  must 
of  necessity  apply  to  such  a  contract  as  the  one  before  us;  otherwise  (^  ' 
we  should  be  involved  in  the  solecism  of  holding  that  a  piece  of  paper 
containing  a  stipulation,  of  no  validity  in  the  place  where  it  was  exe- 
cuted and  delivered  and  where  the  general  engagement  evidenced  by  it 
was  to  be  chiefly  performed,  becomes  a  contract  in  some  other  jurisdic- 
tion in  which  an  action  may  chance  to  be  brought  upon  it.  The  incon-  / 
venience  of  such  a  rule,  as  applicable  to  the  facts  before  us,  would  be  | 
that  a  shipper  in  Illinois,  accepting  a  bill  of  lading  containing  such  a 
stipulation,  must  determine  whether,  by  accepting  it,  he  does  not  draw 
himself  into  a  disadvantageous  contract,  not  according  to  the  law  where 
the  parties  are  when  they  make  the  contract,  but  according  to  the  law 
of  Missouri  or  Massachusetts  or  some  other  foreign  jurisdiction  where 
the  contract  may  possibly  become  the  subject  of  an  action. 

[The  court  thereupon  held  that  there  was  no  evidence  that  plaintiif 
had  assented  to  the  stipulation.]'^ 

7  Pitcairn  v.  Philip  Hiss  Co.  (1903)  125  Fed.  110,  113,  61  C.  C.  A.  657,  Arch- 
bald,  District  Judge:  "According  to  the  modem  and  better  view,  the  rule 
which  prohibits  the  modification  of  a  written  contract  by  parol  is  a  rule,  not 
of  evidence,  but  of  substantive  law.  21  A.  &  E.  Enc.  Law  (2d  Ed.)  1079: 
Thayer's  Evidence,  p.  390  et  seq. ;  1  Greenleaf.  Evidence  (16th  Ed.)  §  350a. 
Parol  proof  is  excluded,  not  because  it  is  lacking  in  evidentiary  value,  but 
because  the  law  for  some  substantive  reason  declares  that  what  is  sought 
to  be  proved  by  it  (being  outside  the  writing  by  which  the  parties  have  under- 
taken to  be  bound)  shall  not  be  shown." 

So  as  to  whether  an  indorsement  in  blank  can  be  modified  by  parol 
evidence.  Baxter  Nat.  Bank  v.  Talbot.  154  Mass.  213,  28  N.  E.  163,  13  L. 
R.  A.  52  (1891).  But  see  Downer  v.  Chesebrough,  36  Conn.  39,  4  Am.  Rep. 
29  (1869). 

The  form  of  action — e.  g.,  whether  it  must  be  at  law  or  in  equity,  Burch- 
ard  V.  Dunbar,  82  111.  450,  25  Am.  Rep.  334  (1S7G) ;  or  whether  it  shall  be 
assumpsit,  covenant,  or  debt — is  determined  bv  the  lex  fori.  Warren  v. 
Lynch,  5  Johns.  (N.  Y.)  239  (1810);  Trasher  v.  Everhart,  3  Gill  &  J.  (Md.) 
234  (1831) ;  Bank  of  United  States  v.  Donnally,  8  Pet.  (U.  S.)  361,  8  L.  Ed. 
974  (1834).  For  this  purpose,  the  question  whether  an  instrument  is  sealed 
or  not  has  been  held  to  be  governed  by  the  same  law.  Le  Roy  v.  Beard, 
8  How.  (U.  S.)  451,  12  L.  Ed.  1151  (1850). 

The  lex  fori  decides  whether  the  assignee  of  a  chose  in  action  can  sue  in 
his  own  name,  Foss  v.  Nutting,  14  Gray  (Mass.)  484  (1S60) ;  whether  a 
married  woman  can  be  sued  alone,  or  whether  her  husband  must  be  joined, 
Robinson  v.  Queen,  87  Tenn.  445,  11  S.  W.  38,  3  L.  R.  A.  214,  10  Am.  St. 
Rep.  690  (1889) ;  whether  parties  to  a  joint  obligation  can  be  sued  several- 
ly, Fryklund  v.  Great  Northern  R.  Co.,  101  Minn.  37,  111  N.  W.  727  (1907). 
It  determines,  also,  the  mode  of  continuing  an  action  against  a  foreign  cor- 
poration after  its  dissolution,    Sturges   v.    Vauderbilt,   73   N.   Y.   384    (1878) ; 


62 


GENERAL  PROVISIONS. 


(Part  1 


Si^ 


McELMOYLE  V.  COHEN. 

(Supreme  Court  of  the  United  States,  1839.    13  Pet.  312,  10  L.  Ed.  177.) 

Certificate  of  division  from  the  Circuit  Court  of  Georgia.  William 
McElmoyle,  a  citizen  of  the  state  of  South  CaroHna,  suing  for  the  use 
of  Isaac  S.  Bailey,  also  a  citizen  of  that  state,  presented  a  petition,  in 
1835,  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Georgia,  stating  that  Levy  Florence  had  died  intestate,  and,  having  be- 
fore his  death  resided  in  the  state  of  South  Carolina,  he  had  obtained 
a  judgment  against  him  in  the  court  of  common  pleas  for  the  city  of 
Charleston,  for  $9,687,  on  a  promissory  note,  on  the  16th  day  of  Feb- 
ruary, 1833,  which  remained  unsatisfied;  an  exemplification  of  which 
judgment  in  due  form  was  exhibited  to  the  court  with  the  petition. 

The  defendant,  a  citizen  of  Georgia,  to  which  state  Levy  Florence 
removed,  after  seven  years  from  the  rendition  of  the  judgment,  and  in 
which  state  he  resided  at  the  time  of  his  death,  pleaded  the  statute  of 
limitations  of  the  state  of  Georgia,  which,  the  plea  alleged,  limited  such 
actions  to  five  years  from  the  cause  of  action ;  and  he  afterwards  plead- 
ed that  there  was  no  statute  of  the  state  of  South  Carolina  which  lim- 
ited suits  upon  judgments  therein  to  any  particular  time,  nor  was  there 
any  statute  of  limitations  in  that  state  applicable  to  judgments,  but 
that  a  statute  was  passed  by  the  Legislature  of  Georgia,  on  the  7th  day 
of  December,  1805,  which  provided  and  declared  that  all  actions  of 
debts  on  judgments  obtained  in  courts  other  than  the  courts  of  Geor- 
gia should  be  commenced  and  prosecuted  within  five  years  from  the 
rendition  of  such  judgments,  and  not  afterwards,  and  that  for  seven 
years  after  the  rendition  of  the  judgment  on  which  the  suit  is  brought, 
Levy  Florence  was  a  resident  and  citizen  of  the  state  of  Georgia,  and 
no  suit  on  the  judgment  was  commenced  against  him,  nor  for  two  years 
after  the  defendant,  John  J.  Cohen,  had  been  the  duly  qualified  ad- 
ministrator of  the  said  Levy  Florence.  The  defendant,  for  further 
plea,  stated  that  he  had  not  funds  of  the  estate  of  Levy  Florence  suffi- 
cient to  pay  the  whole  of  the  judgment,  and  to  pay  the  other  debts 
claimed  as  due  from  the  estate. 

Upon  the  trial  of  the  cause,  the  following  questions  occurred,  upon 
which  the  opinions  of  the  judges  were  opposed;  and  the  same  were 
certified  to  the  Supreme  Court:  (1)  Whether  the  statute  of  limita- 
tions of  Georgia  can  be  pleaded  to  an  action  in  that  state,  founded 

and  the  question  whether  a  ponding  action  can  be  revived  upon  the  death 
of  either  party,  Baltimore  &  O.  R.  Co.  v.  Joy,  173  U.  S.  226,  19  Sup.  Ct 
387,  43  L.   VaI.  677  (1899). 

The  lex  fori  governs  ordinary  presumptions  of  law.  Johnson  v.  Chicago 
&  N.  W.  Ry.  Co.,  91  Iowa,  248,  59  N.  W.  66  (1894) ;  Jones  v.  Chicago,  St. 
P.,  M.  &  O.  R.  Co.,  80  Minn.  488.  83  N.  W.  446,  49  L.  R.  A.  640  (1900).  It 
regulates  the  evidence  requisite  to  make  a  prima  facie  case,  Richmond  & 
D.  R.  Co.  v.  Mitchell,  92  Ga.  77,  18  S.  E.  200  (1898) ;  or  to  submit  a  case  to 
the  jury,  Ferguson  v.  Central  R.  Co.  of  New  Jersey,  71  N.  J.  Law,  647, 
60  Atl.  382  (1965). 


Ch.  3)  -  PROCEDURE.  03 

upon  a  judgment  rendered  in  the  state  of  South  Carolina?  (2)  Wheth- 
er in  the  administration  of  assets  in  Georgia,  a  judgment  rendered  in 
South  CaroHna,  upon  a  promissory  note,  against  the  intestate,  when 
in  hfe,  should  be  paid  in  preference  to  simple  contract  debts? 

Wayne,  J.^  *  *  *  Such  being  the  faith,  credit,  and  effect  to  be 
given  to  a  judgment  of  one  state  in  another,  by  the  Constiiution  and 
the  act  of  Congress,  the  point  under  consideration  will  be  determined 
by  settling  what  is  the  nature  of  a  plea  of  the  statute  of  limitations. 
Is  it  a  plea  that  settles  the  right  of  a  party  on  a  contract  or  judgment, 
or  one  that  bars  the  remedy?  Whatever  diversity  of  opinion  there 
may  be  among  jurists  upon  this  point,  we  think  it  well  settled  to  be  a 
plea  to  the  remedy;  and,  consequently,  that  the  lex  fori  must  prevail. 
Higgins  V.  Scott,  2  Barn.  &  Adolph.  413;  4  Cow.  (N.  Y.)  528,  530, 
note  10;  Van  Reimsdyk  v.  Kane,  1  Gall.  (U.  S.)  371,  Fed.  Cas.  No. 
16,871 ;  Le  Roy  v.  Crowninshield,  2  Mason,  151,  Fed.  Cas.  No.  8,269 ; 
British  Linen  Com.  v.  Drummond,  10  Bar.  &  Cresw.  903 ;  De  La  Vega 
V.  Vianna,  1  Barn.  &  Adolph.  284 ;  Decouche  v.  Savetier,  3  Johns.  Ch. 
(N.  Y.)  190,  8  Am.  Dec.  478 ;  Lincoln  v.  Battelle,  6  Wend.  (N.  Y.)  475  ; 
Gulick  V.  Loder,  13  N.  J.  Law,  68,  23  Am.  Dec.  711 ;  3  Burge's  Com. 
on  Col.  and  For,  Laws,  883.  The  statute  of  Georgia  is:  "That  ac- 
tions of  debt  on  judgments  obtained  in  courts,  other  than  the  courts 
of  this  state,  must  be  brought  within  five  years  after  the  judgment  ob- 
tained." It  would  be  strange,  if  in  the  now  well-understood  rights 
of  nations  to  organize  their  judicial  tribunals  according  to  their  no- 
tions of  policy,  it  should  be  conceded  to  them  in  every  other  respect 
than  that  of  prescribing  the  time  within  which  suits  shall  be  litigated 
in  their  courts.  Prescription  is  a  thing  of  policy,  growing  out  of  the 
experience  of  its  necessity;  and  the  time  after  which  suits  or  actions 
shall  be  barred,  has  been,  from  a  remote  antiquity,  fixed  by  every  nation. 
in  virtue  of  that  sovereignty  by  which  it  exercises  its  legislation  for 
all  persons  and  property  within  its  jurisdiction.  This  being  the  founda- 
tion of  the  right  to  pass  statutes  of  prescription  or  limitation,  may 
not  our  states,  under  our  system,  exercise  this  right  in  virtue  of  their 
sovereignty?  or  is  it  to  be  conceded  to  them  in  every  other  particular 
than  that  of  barring  the  remedy  upon  judgments  of  other  states  by 
the  lapse  of  time?  The  states  use  this  right  upon  judgments  rendered 
in  their  own  courts ;  and  the  common  law  raises  the  presumption  of 
the  payment  of  a  judgment,  after  the  lapse  of  twenty  years.  May 
they  not,  then,  limit  the  time  for  remedies  upon  the  judgments  of  other 
states,  and  alter  the  common  law  by  statute,  fixing  a  less  or  larger 
time  for  such  presumption,  and  altogether  barring  suits  upon  such 
judgments,  if  they  shall  not  be  brought  within  the  time  stated  in  the 
statute?  It  certainly  will  not  be  contended  that  judgment  creditors  of 
other  states  shall  be  put  upon  a  better  footing,  in  regard  to  a  state's 
right  to  legislate  in  this  particular,  than  the  judgment  creditors  of  the 

8  Only  a  part  of  the  opinion  is  given. 


ert  E.  Stone 


64  GENERAL  PROVISIONS.  (Part  1 

state  in  which  the  judgment  was  obtained.  And  if  this  right  so  exists, 
may  it  not  be  exercised  by  a  state's  restraining  the  remedy  upon  the 
judgment  of  another  state,  leaving  those  of  its  own  courts  unaffected 
by  a  statute  of  limitations,  but  subject  to  the  common-law  presump- 
tion of  payment  after  the  lapse  of  twenty  years?  In  other  words,  may 
not  the  law  of  a  state  fix  different  times  for  barring  the  remedy  in  a 
suit  upon  a  judgment  of  another  state,  and  for  those  of  its  own  tribu- 
nals? We  use  this  mode  of  argument  to  show  the  unreasonableness  of 
a  contrary  doctrine.  But  the  point  might  have  been  shortly  dismissed 
with  this  sage  declaration,  that  there  is  no  direct  constitutional  inhibi- 
tion upon  the  states,  nor  any  clause  in  the  Constitution  from  which  it 
can  be  even  plausibly  inferred,  that  the  states  may  not  legislate  upon 
the  remedy  in  suits  upon  the  judgments  of  other  states,  exclusive  of  all 
interference  with  their  merits.  It  being  settled  that  the  statute  of 
limitations  may  bar  recoveries  upon  foreign  judgments;  that  the  effect 
intended  to  be  given  under  our  Constitution  to  judgments,  is,  that  they 
are  conclusive  only  as  regards  the  merits ;  the  common-law  principle 
then  applies  to  suits  upon  them,  that  they  must  be  brought  within  the 
period  prescribed  by  the  local  law,  the  lex  fori,  or  the  suit  will  be 
barred. 

Counsel  have  relied,  to  estabhsh  a  contrary  doctrine,  upon  Morton 
&  Co.  V.  Naylor,  1  Hill's  Law  (S.  C.)  439.  But  that  case  was  obvious- 
ly decided  upon  a  misconception  of  the  learned  judges  of  the  decision 
of  this  court  in  the  case  of  Mills  v.  Duryee,  7  Cranch,  481,  3  L.  Ed.  411. 

It  is,  therefore,  our  opinion,  that  the  statute  of  limitations  of  Georgia 
can  be  pleaded  to  an  action  in  that  state,  founded  upon  a  judgment 
rendered  in  the  state  of  South  Carolina. 

[In  regard  to  the  second  question,  it  was  held  that,  in  the  payment 
of  the  debts  of  a  deceased  party,  a  judgment  of  another  state  would 
enjoy  such  rank  only  as  is  assigned  to  it  by  the  law  of  the  forum. ]^ 


BYRNE  V.  CROWNINSHIELD. 
(Supreme  Judicial  Court  of  Massachusetts,  1820.     17  Mass.  55.) 

Assumpsit  by  the  endorsee  against  the  maker  of  sundry  promissory 
notes,  dated  at  New  York,  on  the  29th  day  of  March,  1811. 

The  defendant  pleads  the  statute  of  limitations  of  the  state  of  New 
York,  in  bar;  and  avers  that,  at  the  time  when  the  supposed  cause  of 
action  accrued  to  the  plaintiff,  the  parties  resided  in  and  were  citizens 

»  See  Le  Roy  v.  Crowninshield,  2  Mason,  151,  Fed.  Cas.  No.  8,269  (1820): 
TowDsend  v.  Jemison.  9  How.  (U.  S.)  407,  13  L.  Ed.  1!>4  (1850);  and,  In 
general,  48  L.  R.  A.  G25-G44  ;    4  L.  R.  A.  (N.  S.)  1020-1032. 

The  doctrine  that  the  statute  of  liinitatioiis  goes  to  the  remedy  was  sup- 
ported by  the  Dutch  jurists  I\  Voot  (De  Statutis,  §  10,  c.  1,  No.  1)  aud  Ul- 
tieus  Huber  (De  conflictu  legum,  No.  7). 


Ch.  3)  PROCEDURE.  65 

of  that  state,  and  that  the  cause  of  action  accrued,  if  at  all,  within  the 
said  state. 

To  this  plea  the  plaintiff  demurs,  and  the  defendant  joins  in  de- 
murrer. 

Nichols,  for  the  plaintiff,  cited  and  relied  on  the  case  of  Pearsall  v. 
Dwight,  2  Mass.  84,  3  Am.  Dec.  35,  as  decisive  of  the  question  arising 
in  the  present  action. 

Cummings,  for  the  defendant.  I  am  to  distinguish  this  case  from 
the  one  cited  for  the  plaintiffs;  and  it  will  be  found  to  differ  in  one 
essential  fact.  In  that  case,  the  defendants  were  citizens  and  residents 
in  Massachusetts,  nor  does  it  appear  that  they  were  ever  within  the 
state  of  New  York.  In  the  case  at  bar,  the  parties  were  all  citizens  of 
and  residents  in  New  York,  at  the  time  of  making  the  contract  and 
long  after.  If  this  court  will  ever  recognize  a  statute  of  limitations 
enacted  by  another  state  they  will  give  effect  to  the  one  pleaded  in 
this  case. 

Nichols,  in  reply.  The  court  considered  the  parties  in  Pearsall  v. 
Dwight  as  inhabitants  of  New  York,  and  the  contract  as  made  there. 
See  Nash  v.  Tupper,  1  Caines  (N.  Y.)  402,  2  Am.  Dec.  197;  Smith  v. 
Spinolla,  2  Johns.  (N.  Y.)  198;  Jackson  v.  Dieffendorf,  3  Johns.  (N. 
Y.)  269. 

By  The  Court.  The  case  cited  by  the  plaintiff's  counsel  from  our 
own  Reports,  is  decisive  of  this  action.  The  principle  has  often  been 
recognized,  that  the  laws  of  the  country  where  the  contractjs_^made, 
are  to  goveTiTits  construction ;  those  of  the  country  where  the  remedy 
is  sought,  are  to  prescribe  that  remedy. 

A  difference  has  been  attempted  to  be  shown  in  this  case,  from  that 
of  Pearsall  v.  Dwight,  in  that  both  the  parties  to  this  action  were  in- 
habitants of  New  York  at  the  time  when  the  contract  was  rhade,  and 
the  cause  of  action  accrued.  But  that  fact  was  assumed  in  the  case 
referred  to.     The  difference  then  does  not  exist. 

Defendant's  plea  bad.^" 

10  For  statutory  modification  of  rule,  see  West  v.  Theis,  96  Pac.  932  (1908), 
and  note  on  case  in  22  Harv.  L.  Rev.  62. 

As  to  when  statute  begins  to  run.  see  15  L.  R.  A.  (N.  S.)  156-165. 

The  lex  fori  has*  been  held  to  govern,  also,  certain  preliminary  matters — • 
e.  g.,  whether  for  the  purpose  of  the  statute  of  limitations  an  instrument 
is  to  be  deemed  a  specialty  or  not.  Bank  of  United  States  v.  Donnally,  8 
Pet.  (U.  S.)  361,  8  L.  Ed.  974  (1834);  and  whether  a  person  for  such  pur- 
pose has  reached  the  age  of  majority,  Burgett  v.  Williford,  56  Ark.  187,  19 
S.  W.  750,  35  Am.  St.  Rep.  96  (1892). 

LOK.CONF.L.— 5 


66  GENERAL  PROVISIONS.  (Part  1 

^Q^^^jf,,,;^  -  ir^^f^^Ji^  C^  •  ,  SHELBY  V.  GUY. 

I  ^4i^       (Supreme  Court  of  the  United  States,  1826.    11  Wheat.  361,  6  L.  Ed.  405.) 

jftf     Kkji  ' '(/iT''^    ^^^  plaintiffs  here  were  defendants  in  the  court  below. 

^""-—i —     "^  '       The  facts  were  as  follows:     One  Dickerson,  a  citizen  of  Virginia, 

I  \  -j't^'   ^^^^  grandfather  of  the  plaintiff,  was  the  owner  of  a  female  slave  named 

"^  •  Amy,  from  whom  the  slaves  in  question  have  descended.     Upon  the 

V^jjju^  ♦  marriage  of  Thomas  T.  Guy  with  plaintiff's  mother,  Amy  passed  into 

•^  his  possession,  having  been  sent  to  him  by  Dickerson.     Whether  it 

-jQ/if^'  ''  was  by  way  of  loan  or  parol  gift  was  controverted. 

From  1778  to  1794,  Amy  remained  in  Guy's  possession  and  was  then 
sold  with  her  increase  to  David  Shelby,  defendant,  who  thereupon  re- 
moved with  the  slaves  to  Tennessee  where  he  resided  until  the  begin- 
ning to  this  action. 
»      -•5  .'jfcjfcM/  ^J^    /~^^  1788,  10  years  after  Amy  came  into  the  possession  of  T.  T.  Guy, 
'■    ill     '^^  LM«^^y  Dickerson  willed  the  slaves  to  T.  T.  Guy  for  life  with  remainder  to  the 
•^  '     Jajuwi/o  (.testator's  grandsons,  John  and  Thomas  Guy.     The,  executory  jdeviae 

,>.\jA   "^  tM^^^^^'     took..e,fect,.by  the._death  pf_their  father  in_1795j     Shortly  afterwards 
and  before  the  bringing  of  this  action  John  died.     Neither  brother  had 
been  in  Tennessee  until  within  three  years  prior  to  the  institution  of 
this  suit,  but  had  resided  in  Virginia. 
,    ^^^      ^    Thomas  Guy  brought  this  action  in  Tennessee  to  recover  the  slaves 
A  '^  "^^jS^    i  there  in  possession  of  Shelby.   '  Defendants  below  pleaded  non  detinet 


•jjfc*'  "     ^  ,^(fAP^  and  the  act  of  limitations  of  Tennessee. 


V '*■**, i.  fl^*  The  limitation  to  the  action  of  detinue  in  Tennessee  was  three  vears 


\  ■-'  P        with  a  saving  clause  in  favor  of  nonresidents,  while  it  was  five  years 


\tju0^ \f/*  ii^  the  state  of  Virginia. 

.Ul^'  I  A*^A^^A^  Plaintiff  joined  issue  upon  the  plea  of  non  detinet  and  filed  a  special 

'^\.  ♦^  ^*  /  replication  to  the  plea  of  the  statute,  the  object  of  which  was  to  bring 

'j^    (/*'      -^"^  himself  within  the  saving  in  favor  of  absentees.     Defendants  demurred 

Jt/'  ..ji/^'^'^kjM  to  the  replication,  but  the  demurrer  being  overruled,  they  went  to  trial 

-^  V^'^^J  ^^^^  ^"  the  general  issue,  and  verdict  was  rendered  for  plaintiff.     Defend- 

^^y  •*  t*    ^  ^"^  thereupon  sued  out  a  writ  of  error  to  the  Supreme  Court  of  the 

*'^      Vi^  United  States." 

^  W'  Johnson,  J.^-     *     *     *     The  object  of  the  defendants,  in  the  sev- 

'  ^  era!  prayers  for  instructions  propounded  to  the  court,  was  to  be  let  into 

V^  proof  of  a  title,  without  will  or  deed,  in  the  father  of  T.  T.  Guy,  from 

^^     t^^  whom  they  purchased,  and  to  maintain,  that  although  that  title  was  only 

.  (v  Ji^  ^  y  derived  to  him  by  implication,  under  the  limitation  acts  of  Virginia,  it 

'^  ^^   ^   o/^fi^^  was  sufficient,  not  only  to  make  out  a  defense  by  pleading,  but  by 

^0/     ,-1.  ***  0  giving  such  facts  in  evidence  as  would  be  a  good  defence  on  a  plea 

8'        ^tt^^  of  the  statute  of  limitations,  if  the  suit  were  instituted  in  the  state 

,4"^  As        fti     11  The  statement  of  facts  has  been  abstracted  from  the  opinion, 

^  ^jD^        /•/  ^^^  P^^^t  of  the  opinion  has  been  omitted. 


Ch.  3)  PROCEDURE.  67 

of  Virginia,  or  to  maintain  detinue  in  a  suit  to  recover  in  right  of  a 
possession  under  the  statute  in  that  state.  With  this  view,  they  pro- 
posed to  rely  on  the  following  propositions : 

1.  That  the  proof  that  Dickerson,  on  the  marriage  of  Guy  with 
his  daughter,  had  sent  the  slave  in  question  with  them,  or  to  them, 
upon  their  going  to  housekeeping,  and  permitted  her  to  remain  there 
ever  after,  as  their  property,  without  any  specific  declaration  of  the 
interest  vested  in  them,  other  than  the  will  of  1788,  with  a  variety 
of  corroborating  facts,  was  sufificient  to  sustain  an  inference  of  a  gift 
or  transfer  by  parol,  and  of  such  an  adverse  possession  as  might  con- 
stitute a  bar  under  the  act  of  limitations  of  Virginia  of  1705.  This 
the  court  refused,  on  the  ground,  that  a  parol  gift  of  slaves  in  Vir- 
ginia was,  at  the  date  of  that  transaction,  absolutely  void.     *     *     * 

And  on  this  point,  we  think  the  court  erred  in  rejecting  the  proof. 
For,  although  the  gift  may  have  been  void  or  voidable,  the  fact  of  de- 
livery of  possession  attended  it,  and  this  must  have  put  the  party  to 
his  action  to  reinstate  himself  in  the  enjoyment  of  the  property.  The 
limitation  to  the  action  of  detinue  in  Virginia,  is  five  years;  and  here 
the  supposed  donee  proves  a  possession  of  ten  years. 

There  can,  then,  be  but  one  doubt  raised  on  the  right  of  the  defendant 
to  the  instruction  here  prayed,  and  to  the  admission  of  the  evidence 
offered  to  the  fact  of  a  parol  gift,  and  that  is,  whether  he  could  avail 
himself  of  this  defence  in  this  mode.  In  the  case  of  Newby's  Adm'rs 
V.  Blakey,  3  Hen.  &  M.  (Va.)  57,  a  case  strikingly  resembling  this  in 
its  circumstances,  it  was  adjudged,  that  a  plaintiff  in  Virginia,  may  re- 
cover in  detinue,  upon  five  years'  peaceable  possession  of  a  slave,  ac- 
quired without  force  or  fraud.  And  four  months  after  that  decision, 
and  obviously  without  being  apprised  of  it,  this  court,  in  the  case  of 
Brent  v.  Chapman,  maintained  the  same  doctrine  (5  Cranch,  358,  3  L. 
Ed.  125). 

It  follows,  we  think,  that,  on  the  same  principle,  such  a  possession 
must  constitute  a  good  defence  in  Tennessee.  To  preclude  the  de- 
fendant from  availing  himself  of  the  benefit  of  that  evidence  which 
would  have  sustained  an  action  for  the  same'  property,  by  the  per- 
son from  which  he  purchased  it,  would  be  to  convert  a  good  and 
valid  title  in  Virginia,  into  a  defeasible  title  in  Tennessee ;  a  sufficient 
title  in  a  vendor,  into  a  defeasible  title  in  his  vendee ;  and,  by  an  indi- 
rect operation,  to  make  the  seller  liable,  where  a  direct  action  could 
not  have  been  maintained  against  him  to  recover  the  property  sold. 


13  As  to  distinction  between  statutes  of  limitation  affecting  merely  the 
remedy  and  tliose  extinguishing  the  debt  or  claim,  see  Story,  Conflict  of 
Laws  (8th  Ed.)  §  oS2b.  This  distinction  was  approved  by  Chief  Justice  Tiudal 
in  Huber  v.  Steiner,  2  Bing.  N.  0.  202,  211  (1835),  and  by  Shipman,  Cir- 
cuit Judge,  in  Canadian  Pac.  R.  Co.  v.  Johnston,  61  Fed.  738,  9  C.  C.  A. 
587,  25  L.  R.  A.  470  (1894).  See,  also,  Wynn  v.  Lee,  5  Ga.  217  (1848) ;  How- 
ell V.  Hair,  15  Ala.  194  (1849)  ;  Alexander  v.  Torrence,  51  N.  C.  260  (1858) ; 
Waters  v.  Barton,  41  Tenn.  450  (1860). 


G8  GENERAL  PROVISIONS.  (Part  1 

ARP  V.  ALLIS-CHALMERS  CO. 

«/    ^    (Supreme  Court  of  Wisconsin,  1907.     130  Wis.  454,  110  N.  W.  386,  8  L.  R.  A. 

[N.  S.]  997,  118  Am.  St.  Rep.  1036.) 


f-^^ Ji^       V  WiNSivOW^  J.     This  action  was  commenced  August  10,  1904,  and  was 

j^y^*^ J^^jjf\  '  brought  by  the  plaintiff  to  recover  damages  for  personal  injuries  suffer- 
f*\  (7^  f^  9  ed  by  the  plaintiff  while  in  the  employ  of  the  defendant  as  the  result 
yt     Jf^  "^^  .^L  ^^  ^"  accident  which  happened  at  the  defendant's  shop  in  the  city  of 

cjf^    pj'^'^ji^      Chicago,  March  31,  1903.    The  defendant  is  a  foreign  corporation  op- 
ylA        \/r^  erating  a  manufacturing  plant  in  Wisconsin,  and  on  the  17th  of  Sep- 

j^      -j^       tember,  1901,  had  duly  filed  with  the  Secretary  of  State  an  instrument 
appointing  a  resident  attorney  in  this  state  as  required  by  section  4231, 
Rev.  St.  Wis.  1898.     The  defendant  by  ans\ver  pleaded  as  a  defense 
j^'  ^  that  part  of  subdivision  5  of  section  4222,  Rev.  St.  Wis.  1898,  which 

,         .        j^  provides  that  no  action  to  recover  damages  for  personal  injuries  shall 

^\^     V*^  be  maintained  unless  a  written  notice  thereof  containing  certain  pre- 

iX  scribed  statements  shall  be  served  on  the  person  responsible  for  the 

injury  within  one  year  after  the  happening  of  the  event.  It  was  admit- 
ted on  trial  that  no  notice  as  required  by  said  subdivision  had  been 
served,  a  verdict  for  the  defendant  was  directed,  and,  from  judgment 
thereon,  the  plaintiff  appeals. 

The  controlling  question  presented  is  whether  that  part  of  section 
4222  above  referred  to  applies  to  a  cause  of  action  arising  in  another 
state  when  a  resident  of  that  state  brings  suit  thereon  against  a  resident 
of  Wisconsin  in  a  Wisconsin  court.  A  few  well-established  prin- 
ciples seem  to  answer  this  question  in  the  affirmative.  The  clause  in 
question  is  a  statute  of  limitations.  Relyea  v.  Tomahawk  Paper  & 
Pulp  Co.,  102  Wis.  301,  78  N.  W.  412,  72  Am.  St.  Rep.  878 ;  O'Don- 
nell  V.  City  of  New  London,  113  Wis.  292,  89  N.  W.  511 ;  Meisen- 
heimer  v.  Kellogg,  106  Wis.  30,  81  N.  W.  1033 ;  Lawton  v.  Waite,  103 
Wis.  244,  79  N.  W.  321,  45  L.  R.  A.  616 ;  Gatzow  v.  Buening,  106 
Wis.  1,  81  N.  W.  1003,  49  L.  R.  A.  475,  80  Am.  St.  Rep.  1.  True, 
its  operation  is  somewhat  different  fro;n  the  operation  of  other  statutes 
of  limitations  in  that  it  acts  upon  the  time  within  which  a  preliminary 
notice  shall  be  served  instead  of  the  time  within  which  the  summons 
shall  be  served,  but  it  is  none  the  less  a  limitation  upon  the  right  to 
maintain  the  action.  Troschansky  v.  Milwaukee  Electric  R.  &  Light 
I /Co.,  110  Wis.  570,  86  N.  W.  156.  It  is  the  long-settled  doctrine  of  this 
court  that,  when  a  statute  of  limitations  has  completely  operated  it^ 
/  e2ctiiiguishes  the  right  of  action  by  taking  away  the  remedy.  Eingart- 
I  rie7  V.  Illinois  SteeTCaTlUTWrs.  373,  79  N.  W.  433,  74  Am.  St.  Rep. 
871.  In  the  absence  of  any  saving  clause  our  statutes  of  limitation 
operate  against  nonresident  plaintiffs  who  bring  actions  in  tlie  courts 
of  this  state  as  well  as  against  residents.  Winter  v.  Winter,  101  Wis. 
494,  77  N.  W.  883 ;  Fields  v.  Estate  of  Mundy,  106  Wis.  383,  82  N. 
W.  343,  80  Am.  St.  Rep.  39.    Were  the  rule  otherwise  the  result  would 


Ch.  3)  PROCEDURE.  69 

be  that  nonresident  litigants  coming  into  our  courts  to  enforce  a  for- 
eign cause  of  action  would  possess  greater  rights  and  privileges  than 
citizens  of  our  own  state.  They  are  entitled  to  the  same  rights  and 
privileges,  no  more,  no  less.  Eingartner  v.  Illinois  Steel  Co.,  9i  Wis. 
70,  68  N.  W.  664,  34  L.  R.  A.  503,  59  Am.  St.  Rep.  859.  This  does 
not  mean  that  our  statutes, of  limitations  have  any  extraterritorial  ef- 
fect so  far  as  foreign  causes  of  action  are  concerned.  They  do  not 
reach  over  into  Illinois  and  extinguish  a  right  of  action  arising  there. 
It  only  means  that  the  foreign  right  sought  to  be  enforced  in  this  state 
after  our  statute  has  run  has  ceased  to  exist  so  far  as  regards  its  en- 
forcement in  this  state,  although  the  right  and  all  remedies  to  enforce 
it  in  the  state  of  Illinois  remain  entirely  unaffected.  Of  course,  when 
a  cause  of  action  arising  here  between  residents  of  Wisconsin  is  barred 
here  the  right  is  extinguished  in  all  jurisdictions,  but  no  one  could  rea- 
sonably claim  that  because  it  could  not  be  enforced  under  the  limita- 
tion laws  of  a  sister  state  it  is  barred  here. 

So  we  hold  that  the  provision  in  question  is  a  limitation  statute  ad- 
mitting of  no  exception;  that  it  applies  to  both  foreign  and  domestic 
causes  of  action;  that  it  acts  like  any  other  statute  of  limitations,  ex- 
tinguishing the  right  in  a  domestic  cause  of  action  as  to  all  jurisdic- 
tions, and  extinguishing  the  right  in  a  foreign  cause  of  action  sought 
to  be  enforced  in  this  state  by  a  nonresident  as  far  as  its  enforcement 
in  our  courts  is  concerned.  This  accords  with  the  decision  of  the 
trial  court. 

Judgment  affirmed. 

'^^'^  CHICAGO,  R.  I.  &  P.  RY.  CO.  v.  THOMPSON.  JZjm^t*^   ^^**^ 

(Supreme  Ck)urt  of  Texas,  1906.    100  Tex.  185,  97  S.  W.  459,  7  L.  R.  A.  [N.   oo««***^*  i 

S.]  191.)  J^jtJL^UU^ 

Action  by  C.   B.  Thompson   against  the  Chicago,  Rock  Island   & 
Pacific  Railway  Company  and  another.     The  Court  of  Civil  Appeals 
affirmed  a  judgment  in  favor  of  plaintiff  (93  S.  W.  702),  and  defend-  ^^^^    ^^  cL^y^ 
ants  bring  error.  ,    in  JauJ^ 

Williams,  J.^*     The  defendant  in  error  applied  for  and  received  ^fa-*-** 

from  plaintififs  in  error  at  Chickasha,  Ind.  T.,  employment  in  the  capacity .  *,---!i|» 

of  brakeman.  His  application,  which  constitutes  a  part  of  the  con-  {JCUl^  -tft^^'^*'"*^ 
tract  of  employment,  contained  this  stipulation  :  "In  further  considera-  ►  'J>ta-^  9c.  ^ 
tion  of  my  employment,  I  agree  that  if,  while  in  the  service  of  the  said  .  . 

company,  I  sustain  any  personal  injury,  for  which  I  shall  or  may  make   ^    ^•«i«^* 
claim  against  said  company   for  damages,   I  will  within  thirty,  days  jt^*/^  ^iA»rfv**^' 
after  receiving  such  injury,  give  notice  in  writing  of  such  claim  to  the  ^ 

general  claim  agent  of  said  company,  at  Chicago,  for  injuries  occurring 

14  Only  so  much  of  the  opniion  is  given  as  relates  to  the  question  whether 
the  stipulation  affected  only  the  remedy.  _  i 


70  GENERAL  PROVISIONS.  (Part  1 

in  Illinois  or  Iowa,  and  to  the  general  attorney  of  said  company,  at 
Topeka,  for  injuries  occurring  elsewhere  on  the  system,  which  notice 
shall  state  the  time,  place,  manner,  and  cause  of  my  being  injured,  and 
the  nature  and  extent  of  my  injuries,  and  the  claim  made  therefor,  to  the 
end  that  such  claim  may  be  fully,  fairly,  and  promptly  investigated ;  and 
my  failure  to  give  notice  of  such  claim  in  the  manner  and  within  the  time 
aforesaid  shall  be  a  bar  to  the  institution  of  any  suit  on  account  of  such 
injuries."  He  was  afterwards,  in  Oklahoma  Territory,  hurt  while  per- 
forming his  duties  to  plaintiffs  in  error  under  the  contract,  and  brought 
this  action  and  recovered  the  judgment  before  us  for  damages  upon 
the  ground  that  his  injury  resulted  from  the  negligence  of  defendant  in 
failing  to  exercise  proper  care  in  keeping  its  track  in  safe  condition. 
At  the  trial  the  defendant  offered  in  evidence  the  contract  above  stat- 
ed, together  with  evidence  to  show  that  it  was  valid  under  the  laws  of 
the  Indian  Territory  and  of  Oklahoma,  and  that  the  notice  had  not  been 
given  as  agreed  upon ;  all  of  which  facts  had  been  pleaded  in  the  an- 
swer. This  evidence  was  excluded  upon  the  objections  urged  by  the 
plaintiff.  The  Court  of  Civil  Appeals  held  that  this  ruling  was  justi- 
fied by  article  3379  of  the  Revised  Statutes  of  1895  of  this  state,  which 
provides :  "No  stipulation  in  any  contract  requiring  notice  to  be  given 
of  any  claim  for  damages  as  a  condition  precedent  to  the  right  to  sue 
thereon  shall  ever  be  valid,  unless  such  stipulation  is  reasonable,  and 
any  such  stipulation  fixing  the  time  within  which  such  notice  shall  be 
given  at  a  less  period  than  ninety  days  shall  be  void,  and  when  any 
such  notice  is  required,  the  same  may  be  given  to  the  nearest  or  any 
other  convenient  local  agent  of  the  company  requiring  the  same.  In 
any  suit  brought  under  this  and  the  preceding  article  it  shall  be  pre- 
sumed that  notice  has  been  given,  unless  the  want  of  notice  is  specially 
pleaded  under  oath." 

The  stipulation  was  regarded  by  the  Court  of  Civil  Appeals  as  aft'ect- 
ing  onl}^  the  remedy,  in  analogy  to  the  statute  of  limitations,  and  as 
being  controlled  by  the  law  of  the  forum.  The  evident  purpose  of  the 
stipulation  was  to  secure  notice  to  the  employer  of  the  claim  of  the  serv- 
ant that  it  was  liable  for  an  injury  suffered  by  him  in  order  that  op- 
portunity might  be  given  for  prompt  investigation  and  ascertainment  of 
the.  facts  affecting  the  claim.  Phillips  v.  Western  Union  Telegraph 
Co.,  95  Tex.  643,  69  S.  W.  63.  It  fixes  no  time  within  which  suit 
must  be  brought  after  notice  has-  been  given,  leaving  the  plaintiff  free 
to  sue  within  the  time  allowed  by  law.  But  it  attaches  to  the  failure  to 
give  the  notice  the  effect  of  "a  bar  to  the  institution  of  any  suit  on 
account  of  such  injuries."  The  bar  is  not  to  arise  from  lapse  of  time, 
merely,  but  from  the  failure  to  do  that  which  the  parties  agreed  on 
as  essential  to  the  right  to  have  a  determination  by  suit  of  the  question  of 
liability  for  the  injury.  Its  effect,  if  enforced  according  to  its  terms, 
was  either  to  prevent  the  accrual  of  liability,  or  to  put  an  end  to  all 
further  question  of  liability  after  the  expiration  of  the  prescribed  time 
without  notice.     Whether  it  had  the  eft'ect  first  mentioned,  as  contended 


Ch.  3)  PROCEDURE.  71 

by  plaintiffs  in  error,  or  the  latter,  as  contended  by  defendant  in  error, 
is  wholly  immaterial  to  the  present  inquiry.  In  either  view  it  acts  upon 
the  substantive  rights  of  the  parties,  and  not  upon  the  mere  mode  and 
time  of  their  enforcement  in  the  courts.  Had  it  been  only  an  agree- 
ment, valid  both  in  Oklahoma  and  in  the  Indian  Territory,  to  fix  a 
period  within  which  suit  must  be  brought,  we  should  have  the  question, 
which  we  need  not  consider,  whether  the  time  so  fixed  or  that  prescrib- 
ed by  our  statute  of  limitations  would  govern.  Section  2,  Wharton's 
Conflict  of  Laws  (3d  Ed.)  p.  1434.  The  cases  of  Armstrong  v.  Galves- 
ton, H.  &  S.  A.  Ry.  Co.,  92  Tex.  117,  46  S.  W.  33,  and  Burgess  v. 
Western  Union  Telegraph  Co.,  92  Tex.  125,  46  S.  W.  794,  71  Am.  St. 
Rep.  833,  cited  by  the  Court  of  Civil  Appeals,  do  not  decide  the  ques- 
tion before  us.  In  the  Armstrong  Case  the  contract  was  made  in 
Texas,  and  was  subject  to  our  laws  unless  the  fact  that  it  was  for  an 
interstate  shipment  put  it  beyond  their  operation,  and  that  was  the  ques- 
tion discussed.  The  contract  in  the  Burgess  Case  was  made  in  Louisi- 
ana ;  the  law  of  which,  presumed  to  be  the  same  as  that  of  this  state, 
made  it  illegal.  This  is  the  gist  of  the  decision,  the  court  holding, 
as  in  the  Armstrong  Case,  that  it  was  in  the  power  of  the  state  Leg- 
islatures to  make  regulations  applicable  to  contracts  concerning  inter- 
state commerce.  Neither  case  holds  that  the  statute  of  this  state  applies 
to  contracts  made  in  other  jurisdictions.  Indeed,  the  Burgess  Case 
holds  that  the  contract  there  in  question  was  governed  by  the  law  of 
Louisiana.     *     *     * 

For  the  error  in  excluding  the  evidence,  the  judgment  is  reversed, 
and  the  cause  remanded. 


DAVIS  V.  MILLS.  '      "^^^VM/^  i^^r^*J<^^       /  a 

(Supreme  Court  of  tbe  Uuitett  States,  1904.    194  U.  S.  451,  24  Sup.  Ct.  G92,  4S      yf  C-^ 

L.  Ed.  1067.)  * 


^cr>**5 


Statement  by  Mr.  Justice  Holmes  : 

This  case  came  here  on  a  certificate  of  which  the  following  is  the 
material  portion: 

"The  plaintiff  is  a  citizen  of  Montana,  and  the  owner  by  assign- 
ment of  three  causes  of  action  (for  goods  sold  and  on  a  promissory  v"*''     ~jl 
note)  against  the  Obelisk  Mining  &  Concentrating  Company,  a  Mon-  ■^    IAtt  ,   v»*''*'l 
tana  corporation.    The  indebtedness  of  the  company  upon  these  causes        ^l.    > 
of  action  accrued  July  31,  1892,  July  1,  189^  and  December  12,  1892,  n^  K^ 

respectively.     The  defendants  are  and  always  have  been  citizens  and   O*^'       lyr^  /»» 
residents  of  Connecticut,  and  at  all  the  times  mentioned  in  the  com-  "^q.  r^     ./*» 
plaint  were  trustees  of  the  said  Obelisk  Mining  Company.     The  stat-      ^y'Cji^    07 
utes  of  Montana  provide  that  within  twenty  days  from  the  1st  day  of       pj^*      Ve\ 
September  every  such  company  shall  annually  file  a  specified  report,  jy  '     ^ 

and  that  if  it  'shall  fail  to  do  so,  all  the  trustees  of  the  company  shall 


72  GENERAL  PROVISIONS.  (Part  1 

be  jointly  and  severally  liable  for  all  of  the  debts  of  the  company  then 
existing,  and  for  all  that  shall  be  contracted  before  such  report  shall 
be  made,'  Section' 460  of  chapter  25  of  the  5th  division,  Compiled 
Statutes  of  Montana,  which  was  in  force  when  the  cause  of  action 
arose,  re-enacted  as  section  451  of  the  Civil  Code  of  Montana,  which 
went  into  effect  July  1,  1895. 

"The  Obelisk  Company  failed  to  file  certain  of  the  required  reports, 
and  the  causes  of  action  sued  upon  here,  against  the  defendants  as 
trustees,  to  recover  debts  of  the  company,  accrued  September  22,  1893, 
or  prior  thereto.  This  action  was  brought  to  enforce  the  joint  and 
several  liability  of  the  defendants  under  the  statute  on  July  30,  1897. 

"When  the  cause  of  action  accrued  the  Compiled  Statutes  of  Mon- 
tana contained  these  sections: 

"  'Sec.  45.  1.  In  an  action  for  a  penalty  or  forfeiture,  when  the 
action  is  given  to  an  individual,  or  to  an  individual  and  the  territory, 
except  where  the  statute  imposing  it  prescribes  a  different  limitation; 
2,  an  action  against  a  sheriff  or  other  officer  for  the  escape  of  a 
prisoner  arrested  or  imprisoned  on  civil  process  shall  be  commenced 
within  one  year.' 

"  'Sec.  50.  If,  when  the  cause  of  action  shall  accrue  against  a 
person,  he  is  out  of  the  territory,  the  action  may  be  commenced  with- 
in the  time  herein  limited,  after  his  return  to  the  territory;  and  if, 
after  the  cause  of  action  shall  have  accrued,  he  depart  from  this 
territory,  the  time  of  his  absence  shall  not  be  a  part  of  the  time 
limited  for  the  commencement  of  the  action.' 

"Both  of  those  sections  were  repealed  by  Code  of  Civil  Procedure, 
§  3482,  which  went  into  effect  July  1,  1895.  On  the  last-named  date 
the  Civil  Code  of  Montana  went  into  effect,  containing  section  451, 
above  cited.  The  Code  of  Civil  Procedure  contains  a  separate  title, 
numbered  II,  and  containing  four  chapters  (sections  470  to  559),  which 
deals  exlTaustively  with  'the  time  of  commencing  actions.'  It  con- 
tains these  sections : 

"  'Sec.  515.    Within  two  years: 

"  '1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  "when  the 
action  is  given  to  an  individual,  or  to  an  individual  and  the  state, 
except  when  the  statute  imposing  it  prescribes  a  different  limitation."  ' 

"  'Sec.  541.  If,  when  the  cause  of  action  accrues  against  a  person, 
he  is  out  of  the  state,  the  action  may  be  commenced  within  the  term 
herein  limited,  after  his  return  to  the  state,  and  if,  after  the  cause  of 
action  accrues,  he  departs  from  the  state,  the  time  of  his  absence  is 
not  part  of  the  time  limited  for  the  commencement  of  the  action.' 

"  'Sec.  554.  This  title  does  not  affect  actions  against  directors  or 
stockholders  of  a  corporation,  to  recover  a  penalty  or  forfeiture  im- 
posed, or  to  enforce  a  liability  created  by  law;  but  such  actions  must 
be  brought  within  three  years  after  the  discovery  by  the  aggrieved 
party  of  the  facts  upon  which  the  penalty  of  forfeiture  attached  or 
the  liability  created  (sic).' 


Ch.   3)  PROCEDURE.  73 

"Upon  the  facts  above  set  forth,  the  question  of  law  concerning: 
which  this  court  desires  the  instruction  of  the  Supreme  Court,  for 
its  proper  decision,  is  : 

"  'May  a  defendant,  in  an  action  of  the  kind  specified  in  section 
554  of  the  Code  of  Civil  Procedure  of  Montana,  avail  of  the  limita- 
tion therein  prescribed,  when  the  action  is  brought  against  him  in  the 
court  of  another  state?'" 

HoLMfes,  J.^°  The  general  theory  on  which  an  action  is  maintained 
upon  a  cause  which  accrued  in  another  jurisdiction  is  that  the  liability  •,  «^  ^  "^  /«♦>' 


is  an  obligatio,  which,  having  been  attached  to  the  person  by  the  law  '  <r*-. 


then  having  that  person  within  its  power,  will  be  treated  by  other 
countries  as  accompanying  the  person  when  brought  before  their 
courts.  But,  as' the  source  of  the  obligation  is  the  foreign  law,  the 
defendant,  generally  speaking,  is  entitled  to  the  benefit  of  whatever 
conditions  and  limitations  the  foreign  law  creates.  Slater  v.  Mexi- 
can Nat.  R.  Co.,  194  U.  S.  120,  24  Sup.  Ct.  581,  48  L.  Ed.  900.  It  is 
true  that  this  general  proposition  is  qualified  by  the  fact  that,  the 
ordinary  limitations  of  actions  are  treated  as  laws  of  procedure,  and 
as  belonging  to  the  lex  fori,  as  affecting  the  remedy  only,  and  not  the 
right.  But  in  cases  where  it  has  been  possible  to  escape  from  that 
qualification  by  a  reasonable  distinction,  courts  have  been  willing  to 
treat  limitations  of  time  as  standing  like  other  limitations,  and  cut- 
ting down  the  defendant's  liability  wherever  he  is  sued.  The  common 
case  is  where  a  statute  creates  a  new  liability,  and  in  the  same  section 
or  in  the  same  act  limits  the  time  within  which  it  can  be  enforced, 
whether  using  words  of  condition  or  not.  The  Harrisburg,  119  U.  S. 
199,  7  Sup.  Ct.  140,  30  L.  Ed.  358.  But  the  fact  that  the  limitation 
is  contained  in  the  same  section  or  the  same  statute  is  material  only  as 
bearing  on  construction.  It  is  merely  a  ground  for  saying  that  the 
limitation  goes  to  the  rignt  created,  and  accompanies  the  obligation 
everywhere.  The  same  conclusion  would  be  reached  if  the  limitation 
was  in  a  different  statute,  provided  it  was  directed  to  the  newly 
created  liability  so  specifically  as  to  warrant  saying  that  it  qualified 
the  right. 

If,  -then,  the  only  question  were  one  of  construction  and  as  to  liabil- 
ities subsequently  incurred,  it  would  be  a  comparatively  easy  matter 
to  say  that  section  554  of  the  Montana  Code  of  Civil  Procedure  quali- 
fies the  liability  imposed  upon  directors  by  section  451  of  the  Civil 
Code,  and  creates  a  condition  to  the  corresponding  right  of  action 
against  them,  which  goes  with  it  into  any  jurisdiction  where  the  ac- 
tion may  be  brought.  But  the  question  certified  raises  greater  difficulties 
both  as  to  construction  and  as  to  power.  We  have  first  to  consider 
whether  section  554  purports  to  qualify,  or  to  impose  a  condition 
upon,  liabilities  already  incurred  under  the  earlier  act  taken  up  into 
section  451.    In  doing  so  we  assume  that  the  word  "directors"  in  the 

15A  part  of  the  opinion  has  been  omitted. 


^I^^'H- 


74  GENERAL  PROVISIONS.  (Part  1 

later  act  means  the  same  as  "trustees"  in  the  earher  one.  The  con- 
trary was  not  suggested.  At  the  argument  we  were  pressed  with-  sec- 
tion 3455  of  the  Code  of  Civil  Procedure:  "No  action  or  proceeding 
commenced  before  this  Code  takes  effect,  and  no  right  accrued,  is 
affected  by  its  provisions."  But  the  trouble  made  by  this  is  more 
seeming  than  real.  The  following  section  deals  specifically  with  lim- 
itations, and  must  be  taken  to  override  a  merely  general  precaution 
against  the  disturbance  of  vested  rights. 

By  section  3456:  "When  a  limitation  or  period  of  time  prescribed 
in  afiy  existing  statute  for  acquiring  a  right  or  barring  a  remedy,  or 
for  any  other  purpose,  has  begun  to  run  before  this  Code  goes  into 
effect,  and  the  same  or  any  limitation  is  prescribed  in  this  Code,  the 
time  which  has  already  run  shall  be  deemed  part  of  the  time  prescribed 
as  such  limitation  by  this  Code."  The  language  clearly  imports  that 
the  limitations  in  the  Code  are  to  apply  to  existing  obligations  upon 
which  the  previous  limitation  already  had  begun  to  run.  The  result 
is  that  section  554  purports  to  substitute  a  three  years'  limitation  for 
the  one  year  previously  in  force,  assuming  that  the  previous  one  year 
limitation  applied  to  this  case,  as  under  the  decisions,  it  did.  State 
Sav.  Bank  of  Butte  City  v.  Johnson,  18  Mont.  440,  45  Pac.  662,  33 
L.  R.  A.  553,  56  Am.  St.  Rep.  591;  National  Park  Bank  v.  Remsen, 
158  U.  S.  337,  342,  15  Sup.  Ct.  891,  39  L.  Ed.  1008,  1009.  But  if 
section  554  purported  to  make  this  substitution,  it  purported  to 
introduce  important. changes.  It  lengthened  the  time  on  the  one  hand, 
but  it  took  away  the  exception  in  case  of  absence  from  the  state  on 
the  other.  This  last  is  disputed,  but  it  seems  to  us  a  part  of  the 
meaning  of  the  words  "This  title  does  not  affect  actions  against 
directors,"  etc.  The  section  as  to  absence  from  the  state  is  a  part  of 
the  title,  and  whatever  necessary  exceptions  jnay  be  made  from  the  gen- 
erality of  the  words  quoted,  this  is  not  one  of  them. 

A  further  difference  is  that,  while  there  might  be  difficulties  in  con- 
struing the  general  limitation  upon  actions  for  penalties  as  going 
to  the  right,  this  section  is  so  specific  that  it  hardly  can  mean  anything 
else.  We  express  no  opinion  as  to  the  earlier  act,  but  we  think  that 
this  section  554  so  definitely  deals  with  the  liability  sought  to  be  en- 
forced that,  v:pon  the  principles  heretofore  established,  it  must  be 
taken  to  affect  its  substance  so  far  as  it  can,  although  passed  at  a  dif- 
ferent time  from  the  statute  by  which  that  liability  first  was  created. 
We  do  not  go  be)'ond  the  case  before  us.  Different  considerations 
might  apply  to  the  ordinary  statutes  as  to  stockholders.  We  express 
no  opinion  with  regard  to  that. 

[The  learned  justice  thereupon  discussed  and  upheld  the  constitu- 
tionality of  the  law.] 

The  question  is  answered  in  the  affirmative,  and  it  will  be  so  certi- 
fied.i« 

10 As  to  maintenance  of  an  action  on  a  l)ond  for  a  deficiency  arising  from  the 
foreclosure  of  a  mortgage  on  real  estate  in  another  jurisdiction,  wliere  a  par- 


Ch.  3)  PROCEDURE.  75 

AYER  V.  TILDEN. 

(Supreme  Judicial  Court  of  Massachusetts,  18G0.     15  Gray,  178,  77  Am.  Dec. 

355.) 

Action  of  contract  upon  the  following-  promissory  note,  made  and 
indorsed  by  defendants:  "$670.81.  New  Lebanon,  N.  Y.,  20th  June, 
1857.  Six  months  after  date  we  promise  to  pay  to  ourselves  six 
hundred  and  seventy  dollars  and  eighty-one  cents,  value  received,  at 
Bank  of  America,  N.  Y.    Tilden  &  Co."  ^^ 

Hoar,  J.^*     *     *     *     'pj-jg  defence  of  usury  failing,  the  plaintiffs 
are  entitled  to  recover,  according  to  the  agreement  of  parties,  the 
principal  of  the  note,  with  interest  at  such  a  rate  as  the  law  will  allow. 
That  rate  will  be  six  per  cent,  from  the  maturity  of  the  note.     The 
interest  is  not  a  sum  due  by  the  contract,  for  by  the  contract  no  inter- 
est was  payable,  and  is  not  therefore  affected  by  the  law  of  the  place  of  ^  #^        i7 
the  contract.     It  is  given  as  damages  for  the  breach  of  contract,  and  jl  /y^  ty%/Jj/fi^^ 
must  follow  the  rule  in  force  within  the  jurisdiction  where  the  judg-  V    akJsA^   "^^ 
ment  is  recovered.     Grimshaw  v.   Bender,   6   Mass.   157 ;    Eaton  v.        TTT^^^j^  > 
Melius,  7  Gray,  566;    Barringer  v.  King,  5  Gray,  12.     The  contrary         dt^^**'^^ 
rule  has  been  held  to  be  applicable  where  there  was  an  express  or      a  ^^    t^tVt>* 
implied  agreement  to  pay  interest.     Winthrop  v.  Carleton,  12  Mass.  \ 
4;  Von  Hemert  v.  Porter,  11  Mete,  210;  Lanusse  v.  Barker,  3  Wheat. 
(U.  S.)  147,  4  L.  Ed.  343. 
.  Perhaps  it  would  be  difficult  to  support  the  decision  in  Winthrop  v. 
Carleton  upon  any  sound  principle;    because  the  court  in  that  case 
held  that  interest  could  only  be  computed  from  the  date  of  the  writ, 

ticular  mode  of  procedure  is  prescribed,  see  Sea  Grove  Building  &  Loau  Ass'u     .^ 
V.  Stockton,  148  Pa.  146.  23  Atl.  1063  (1892) :  Stumpf  v.  Hallahan,  101  App.      ,  v 
Div.  383,  91  N.  Y.  Supp.  1062  (1905),  affirmed  185  N.  Y.  550,  77  N.  E.  1196  (1906). 

Set-Off. — WTiether  or  not  a  valid  claim  can  be  set  up  by  way  of  set-ofC 
or  counterclaim  is  uniformly  held  to  be  a  matter  of  procedure,  governed  by 
the  lex  fori.  Gibbs  v.  Howard.  2  N.  H.  290  (1820) ;  Davis  v.  Morton,  5  Bush 
(Ky.)  160,  90  Am.  Dec.  345  (1868). 

The  very  nature  of  the  contract  may  exclude  the  idea  of  set-off;  e.  g.,  in 
the  case  of  negotiable  paper.  See  Stevens  v.  Gregg,  89  Ky.  461,  12  S.  W. 
775  (1890);  Pritchard  v.  Norton,  106  U.  S.  124,  1.33,  1  Sup.  Ct.  102,  27  L. 
Ed.  104  U882). 

Exemption  Laws. — "Exemption  laws  are  not  a  part  of  the  contract.  They 
are  a  part  of  the  remedy,  and  subject  to  the  law  of  the  forum."  McKenua, 
J.,  in  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sturm  (1899)  174  U.  S.  710,  717,  19  Sup. 
Ct.  797,  43  L.  Ed.  1144,  Accord:  Mineral  Point  R.  Co.  v.  Barron,  S3  111.  365 
(1876);  National  Tube  Co.  v.  Smith.  57  W.  Va.  210,  50  S.  E.  717.  1  L.  R. 
A.  (N.  S.)  195,  110  Am.  St.  Rep.  771  (1905).  Contra:  Drake  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  69  Mich.  168,  37  N.  W.  70,  13  Am.  St.  Rep.  382  (188S). 
But  courts  may  enjoin  citizens  of  their  state  from  proceeding  in  other  states 
in  evasion  of  the  exemption  laws  of  their  own  state.  Keyser  v.  Rice,  47 
Md.  203,  28  Am.  Rep.  448  (1877).  See,  also.  Singer  Mfg.  Co.  v.  Fleming,  39 
Neb.  679,  58  N.  W.  226.  23  L.  R.  A.  210,  42  Am.  St.  Rep.  613  (1894). 

17  This  statement  of  facts  has  been  substituted  for  that  of  the  original 
report. 

18  Only  so  much  of  the  opinion  is  given  as  relates  to  the  question  of 
damages. 


76  GENERAL,  PROVISIONS.  (Part  1 

thus  clearly  sliowing  that  it  was  not  considered  as  due  by  the  contract, 
and  yet  adopted  the  rate  of  interest  allowed  at  the  place  of  the  con- 
tract. But  the  error  would  seem  to  be  in  not  treating  money,  paid 
at  the  implied  request  of  another,  as  entitled  to  draw  interest  from 
the  time  of  payment. 

An  objection  to  adopting  the  rule  of  the  rate  of  interest  in  the  juris- 
diction where  the  action  is  brought  as  the  measure  of  damages  may  be 
worthy  of  notice,  that  this  rule  would  allow  the  creditor  to  wait  until 
he  could  find  his  debtor  or  his  property  within  a  jurisdiction  where  a 
much  higher  rate  of  interest  was  allowed  than  at  the  place  of  the  con- 
tract. But  a  debtor  could  always  avoid  this  danger  by  performing  his 
contract ;  and  the  same  difficulty  exists  in  relation  to  the  actions  of  tro- 
ver and  replevin. 

If  such  a  case  should  arise,  it  might  with  more  reason  be  argued 
that  the  damages  should  not  be  allowed  to  exceed  those  which  would 
have  been  recovered  in  the  state  where  the  contract  was  made  and  to 
be  performed.^ ^ 


g  0  *^  *  •  -   ^  KAVANAUGH  v.  DAY. 


..  _  _  (Supreme  Court  of  Rhode  Island,  1873.    10  R.  I.  393,  14  Am.  Rep.  691.) 


f' 


V^   l<>Ir     •     DuRFEE),  J.^°     Intere^jipon_a_contra.ct_JQiLJJie_^ayfflent--&£un^^ 

^  'J^J^  t/**^  where   it  is   payable_a^Jnter£Sl-   by   tViP   tprmg   r»-F   flip   ennfrapt^   ig   tn-J^f 

^       %.  ^  -      paid  according  to  ijie^lawo^jjie  place  wherp  the  rnnffart  is  r"^'^^'; 

^k/T        tt^\  unless_i.t  is  eRe.^jiere~lo~be  performed.     The  bonds,  secured  by  the 

J^    \0^  mortgage  here   in   suit,   were  made   in   New   York,   between   parties 

^  ^  resident  there,  and,  as  they  make  no  provision  for  payment  elsewhere, 

j^,  were  presumably  to  be  paid  in  New  York.     Accordingly  interest  on 

<r^  them,  if  payable  as  interest,  would  have  to  be  paid  at  the  legal  rate 

in  New  York, — the  fact  that  they  are  secured  by  a  mortgage  of  real 
estate  in  Rhode  Island  being  ineffectual  to  vary  the  rule.  De  Wolf 
V.  Johnson,  10  Wheat.  (U.  S.)  367,  6  L.  Ed.  343;  Lockwood  v.  Mit- 
chell, 7  Ohio  St.  387,  70  Am.  Dec.  78;  Varick  v.  Crane,  4  N.  J.  Eq. 
128;  Dolman  v.  Cook,  14  N.  J.  Eq.  hQ;  Cotheal  v.  Blydenburgh,  5 
N.  J.  Eq.  17 ;    Stapleton  v.  Conway,  3  Atk.  737. 

The  inter^est,__liQW€VGr,  is  payable— not— a»  intercst,-^th:CTe  beiTig^-no 
stipulation  f  nir_interest_  in  the  bonds  but  as  damages  for_thenon- 
payment  of  the  bonds  at  their  maturity;  and  the  counsel  for  tlie~"ge^ 
fendants  rnntpnfjq  that^  whei'e  interest  is  to  be  paid  as  damages,  it  is 

19  So  as  to  interest  upon  a  foreign  .I'udgment.  Clarlv  v.  Child,  136  Mass. 
344  (1884);  Wells,  Fargo  &  Co.  v.  Davis,  105  N.  Y.  670,  12  N.  E.  42  (1887). 
Contra:    Thompson  v.  Monrow,  2  Cal.  99,  56  Am.  Dec.  318  (1852). 

As  to  damages  in  general,  see  91  Am.  St.  Rep.  714-743,  56  L.  R.  A.  301- 
316. 

-0  Only  the  opinion  of  the  conrt  rendered  upon  the  respondent's  excep- 
tions to  the  master's  report  under  the  decree  of  foreclosure  is  given. 


SUb 


Ch.  3)  PROCEDURE.  77 

to  be  computed  at  the  rate  established  by. the  law  of  the  place  where' 
the  suit  is  brou.^htj^an^^3ioQl::thgljaIfel£SlMsh£d  by"Tire-iaw  of  the 
place  wHefe^the  contracLJwasmade  or  to  be  performed.  The  cases  cited 
show  that  such  is  the  rule  inMaisachusetts.  Ayer  v.  Tilden.  15  Grax. 
(Mass.)  178,  77  Am.  Dec.  355;  Ives  v.  Farmers'  Bank,  3  Allen 
(Mass.)  236.  The  case  of  Cooper  v.  Waldegrave,  3  Beav.  282,  does 
not  show  that  such  is  the  rule  in  England.  In  that  case,  the  question 
was  at  what  rate  interest  was  payable  on  three  bills  of  exchange, 
drawn  in  Paris  and  there  accepted,  but  payable  in  London.  No  par- 
ticular rate  of  interest  was  stated  to  be  payable  on  the  face  of  the 
bills.  The  holder  of  the  bills,  in  a  suit  in  England  against  the  acceptor, 
claimed  interest  at  six  per  cent.,  the  legal  rate  in  France.  The  court 
decided  that  English  interest,  at  the  rate  of  five  per  cent.,  should  be 
paid.  The  reason  given  for  the  decision  was,  that  interest  was  given 
as  compensation  for  nonpayment  in  England  and  for  the  delay  suffer- 
ed there,  and  that  the  law  of  the  place  where  the  default  happened 
must  govern  the  allowance  of  interest  arising  out  of  the  default.  The 
inference  is,  that  if  the  default  had  happened  in  another  place,  the  in- 
terest would  have  been  allowed  at  the  rate  established  by  the  law  of 
such  other  place. 

In  Gibbs  v.  Fremont,  9  Exch.  21:,  a  bill  of  exchange,  on  the  face  of, 
which  no  interest  was  reserved  was  drawn  in  California  upon  a  drawee' 
at  Washington,  and  protested  for  nonacceptance.  In  an  action  by  the 
indorsee  against  the  drawee,  in  the  Court  of  Exchequer  in  England, 
the  plaintiff  recovered  interest,  by  way  of  damages,  at  the  rate  of  _^ 

twenty-five  per  cent.,  being  the  rate  payable  in  California.    The  ques-     v   6'^>**~^^    - 
tion  considered  was  whether  the  plaintiff  should  have  interest  at  the      f  OLai/Vp/  '4r*^^^ 
rate  current  in  Washington  or  in  California,  no  claim  even  being  ad- 


vanced that  only  the  much  lower  English  rate  was  to  be  paid.     The 

court  followed  the  decision  in  Allen  v.  Kemble,  6  Moore,  P.  C.  314, 

in  which  it  was  said  that  the  drawer  of  a  bill  of  exchange  "is  liable      ] 

for  payment  of  the  bill,  not  where  the  bill  was  to  be  paid  by  the  drawee,     ,'        ^         qq  -^  ^ 

but  where  he^  the  drawer,  made  his  contract,  with  such  interest,  dam-    ;    yC""^^ § 

ages,  and  costs  as  the  law  of  the  country  where  he  contracted  may    /   Jc*'*^''^'*^ 

allow."    See,  also,  Ekins  v.  East  India  Company,  1  P.  Wms.  395,  and  / 

1  Eq.  Cas.  Abr.  288  (E). 

In  Peck  V.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205,  the  defendants  were 
sued  in  Vermont  as  indorsers  of  a  promissory  note,  drawn  in  Canada, 
indorsed  in  Vermont,  and  payable  in  New  York,  at  a  day  certain, 
without  interest  reserved.  The  court  held  that  interest  was  recover- 
able as  damages  at  the  rate  of  seven  per  cent.,  being  the  New  York 
rate,  and  one  per  cent,  higher  than  the  rate  in  Vermont  or  Canada. 
The  ground  of  the  decision  was  that  the  defendants  had  made  de- 
fault in  New  York,  the  view  of  the  court  differing  in  that  respect 
from  the  view  which  was  taken  in  Gibbs  v.  Fremont.  The  language 
used  by  Justice  Redfield,  in  delivering  the  opinion  of  the  court,  was, 
that  on  a  contract  to  pay  money  at  a  certain  time  and  place,  where  no 


78  GENERAL  PROVISIONS.  (Part  1 

interest  is  reserved,  and  there  is  a  delay  of  payment,  "interest,  by  way 
of  damages,  shall  be  allowed  according  to  the  law  of  the  place  of  pay- 
ment, where  the  money  may  be  supposed  to  have  been  required  by  the 
creditor  for  use,  and  where  he  might  be  supposed  to  have  borrowed 
money  to  supply  the  deficiency  thus  occuring,  and  to  have  paid  the 
rate  of  interest  of  that  country."  This  view  is  supported  by  many 
other  cases.  Foden  v.  Sharp,  4  Johns.  (N.  Y.)  183;  Beckwith  v. 
Trustees  of  Hartford,  P.  &  F.  R.  Co.,  29  Conn.  268,  76  Am.  Dec.  599 ; 
Cowqua  v.  Lauderbrun,  1  Wash.  C.  C.  (U.  S.)  521,  Fed.  Cas.  No.  3,- 
299 ;  Jaffray  v.  Dennis,  2  Wash.  C.  C.  (U.  S.)  253,  Fed.  Cas.  No.  7,- 
171;  Evans  v.  White,  Hempst.  296,  Fed.  Cas.  No.  4,572a;  Pauska 
V.  Daus,  31  Tex.  67,  73;  McAllister  v.  Smith,  17  111.  328,  65  Am.  Dec. 
651. 

We  think  the  rule  which  allows  interest  according  to  the  law  of 
the  place  where  default  is  made,  in  a  case  where  interest  is  recoverable 
as  damages,  is  the  more  reasonable  rule,  and  the  rule  which  is  best 
supported  by  authority ;  and  that,  where  no  special  rate  is  reserved, 
there  is  no  distinction  which  can  justly  affect  the  rate  to  be  recovered, 
between  interest  recoverable  as  interest  and  interest  recoverable  as 
damages. 

The  exception  is  overruled. 


ATWOOD  v.  WALKER. 

(Supreme  Judicial  Court  of  Massachusetts,  1901.    179  Mass.  514,  61  N.  E.  58.) 

Action  by  D.  Preston  Atwood  against  Kate  N.  Walker  for  breach  of 
contract  to  convey  a  certain  piece  of  land.  From  a  judgment  in  favor 
of  plaintiff,  defendant  excepts. 

Lathrop,  J.^^  *  *  *  The  second  and  third  instructions  request- 
ed may  be  considered  together,  and  were  as  follows:  "(2)  If  the  jury 
find  that  the  contract  for  the  sale  of  the  real  estate  was  made  in  New 
York,  and  to  be  executed  there,  and  the  defendant,  believing  herself 
to  have  a  good  title,  agreed  to  convey  the  same,  believing  that  she  was 
able  so  to  do,  the  plaintiff  can  recover  no  damages  except  his  reason- 
able counsel  fees  for  examining  title  and  necessary  expenses  connected 
therewith,  (3)  If  the  contract  was  made  in  New  York  by  the  defend- 
ant, and  to  be  executed  there,  and  was  made  by  her  in  good  faith,  the 
contract  price  is  conclusive ;  and  the  plaintiff,  having  paid  nothing, 
can  recover  nothing."  The  presiding  judge  refused  to  rule  as  request- 
ed, but  instructed  the  jury  that,  if  the  contract  was  made,  and  the 
defendant  failed  to  carry  it  out,  or  refused  so  to  do,  by  reason  of 
inability  to  give  a  good  title,  the  plaintiff  could  recover  the  amount,  if 
any,  by  which  the  fair  market  value  of  the  real  estate  exceeded,  if 

21A  part  of  the  opinion  Ims  boon  omitted. 


Ch.  3)  PROCEDURE.  .  79 

any,  the  purchase  price.  The  jury  found  for  the  plaintiff  in  the  sum  of 
$7,271.  The  defendant's  exceptions  are  not  only  to  the  refusal  to 
rule  as  requested,  but  also  to  the  ruling  given.  It  is  apparent  from 
the  amount  of  the  verdict  that,  if  there  was  error  on  the  part  of  the 
judge,  the  defendant  has  a  very  substantial  grievance. 

The  first  question  is  as  to  the  law  of  New  York,  and  this  is  to  be 
determined  from  the  authorities  put  in  evidence  by  the  defendant,  the 
plaintift  having  put  in  no  evidence  on  this  subject.  An  examination 
of  the  authorities  cited  shows  that  in  New  York,  in  an  action  for 
breach  of  an  agreement  to  convey  land,  if  the  defendant  has  acted  in 
good  faith,  believing  that  he  had  a  good  title,  and  he  is  unable  to  con- 
vey on  account  of  a  defect  in  his  title,  only  nominal  damages  can  be 
recovered.  Baldwin  v.  Munn,  2  Wend.  (N.  Y.)  399,  20  Am.  Dec.  627 ; 
Peters  v.  McKeon,  4  Denio  (N.  Y.)  546 ;  Conger  v.  Weaver,  20  N.  Y. 
140 ;  Margraf  v.  Muir,  57  N.  Y.  155 ;  Cockcroft  v.  New  York  &  H.  R. 
Co.,  69  N.  Y.  201.  Where  the  vendee  has  paid  the  purchase  money  in 
whole  or  in  part,  so  much  as  is  paid  may  be  recovered  back.  Fletcher 
V.  Button,  6  Barb.  (N.  Y.)  646.  So,  too,  the  vendee  may  recover  for 
the  expense  of  examining  the  title,  if  any  such  expense  has  been  incur- 
red. Northridge  v.  Moore,  118  N.  Y.  419,  23  N.  E.  570.  If,  however, 
a  person  contracts  to  sell  lands  which  he  knows  at  the  time  he  has  not 
the  power  to  sell  and  convey,  he  is  liable  to  make  good  to  the  vendee 
the  loss  of  his  bargain ;  and  it  does  not  excuse  the  vendor  that  he 
may  have  acted  in  good  faith,  and  believed,  when  he  entered  into 
the  contract,  that  he  would  be  able  to  procure  a  good  title  for  his 
purchaser.  Pumpelly  v.  Phelps,  40  N.  Y.  59,  100  Am.  Dec.  463. 
There  is  nothing  in  this  case  to  show  that  the  defendant  acted  in  bad 
faith,  or  that  she  knew  of  the  defect  in  her  title.  The  second  request 
states  the  law  in  New  York  with  substantial  accuracy,  as  we  under- 
stand the  facts  of  the  case.  The  third  request  states  the  law  in  New 
York  too  broadly.  The  New  York  decisions  follow  the  English 
rule  as  laid  down  in  Flureau  v.  Thornhill,  2  W.  Bl.  1078,  Bain  v. 
Fotherg-ill,  L.  R.  6  Exch.  59,  and  L.  R.  7  H.  L.  158,  and  in  other 
cases.  The  English  and  the  New  York  rule  differs  from  that  which 
generally  prevails  in  this  commonwealth.  Roche  v.  Smith,  176  Mass. 
595.  598,  58  N.  E.  152,  51  L.  R.  A.  510,  79  Am.  St.  Rep.  345. 

The  contract  for  breach  of  which  damages  are  sought  in  this  case  was__ 
made  in  New  York,  and  was  to  be  performed  there.  The  land  is  situ- 
ated in3I^^s^^hnsetts,  and  thejirtion  is  brought  hfre.  The_questiOn, 
then,  arises  whether^  tb-e-damages  are  to  be  assessed  accordingto  the. 
lex  fori^he  lex  rei  sitse^or  the  lex  loci  contractus.  As  to  the  lex  fori, 
the  general  rule  is  that  all  matters  touching  the  remedy  and  the  mode 
of  procedure,  including  the  admission  of  evidence  and  the  probative 
force  of  evidence,  are  to  be  governed  by  the  lex  fori,  with  some  ex- 
ceptions. See  Minor,  Confl.  Laws,  §  205  et  seq.  So,  where  interest 
is  allowed  as  damages  for  delay,  and  not  as  a  part  of  the  contract,  it 
has  been  held  that  the  amount  to  be  allowed  depends  upon  the  lex 


80 


GENERAL   PROVISIONS. 


(Part  1 


/' 


e- 


iil 


^ 


fori.  Barringer  v.  King,  5  Gray  (Mass.)  9;  Ayer  v.  Tilden,  15  Gray, 
178,  77  Am.  Dec.  355 ;  Hopkins  v.  Shepard,  129  Mass.  "600 ;  Clark  v. 
Child,  136  Mass.  344.  See,  however.  Ex  parte  Heidelback,  2  Low. 
526,  Fed.  Cas.  No.  6,322.  As  to  the  lex  reL^jtsu-it  may  be  said  that 
it  governs  in  many  respects.  It  has  this  effect  as  to  the  title  and  sei- 
sin ;  and  a  deed  or  will~rrra:deTn  one  state,  purporting  tjoT  convey  or 
transfer  land  in  a^otlier,  must  be  in  tlie^fqrm  and_^ccqrding_to  the 
fnrtnalitipq  prptirnhpH  J^y^hg— 1^^  ^"f  ^^^  1qttpr_statp__  But  the  dis- 
tinction Betweea_-a-^eftveyaTTC6--Q£4and  and  ar^soyenant  to  convey  land 
was  pointed-jQ]iLJIl4_5iii^^^^^^^^^£d_in_JPqlso^  Stewart,  167  Mass.  211, 
45  N..E.  737,  36  L.  R.  A.  771,  57  Am.  St.  Rep.  452,  and  it  was  held 
that  a  covenant  between  a  husband  and  wife,  valid  in  the  state  where 
it  was  made,  but  which  would  have  been  invalid  if  made  in  this 
commonwealth,  might  be  enforced  here.  So,  in  Glenn  v.  Thistle,  23 
Miss.  42,  where  a  contract  was  made  in  one  state  for  the  purchase  of 
land  lying  in  another,  and  the  money  was  to  be  paid  in  the  state 
in  which  the  contract  was  made,  it  was  held  that  the  lex  rei  sitae 
governed  as  to  the  title  of  the  land,  and  the  lex  loci  contractus  as  to 
the  effect  of  a  failure  of  consideration.  See,  also,  Pritchard  v.  Nor- 
ton, 106  U.  S.  124,  1  Sup.  Ct.  102,.  27  L.  Ed.  104. 
/  It  is  a_generd  rulethatjn_a11jl^^^ 
/  interpret^ion  of  "a~contract  lbe4€j^  loci  coniractus^  governs,  and__that 
contracts  are  presumed-4€>- be  made  witli,  reference  to  the  law  of  the 
place  \vFiere  theyare  entered  into,  unless  they  are  entered_jnto^w.ith 
reference^TcrtheTaw  of  some'gtli£iL_stat€-ef-e©«»tfy.  See  Baxter  Nat. 
Bank  v.  Talbot7l5riTassr213,  216,  28  N.  E.  163,  13  L.  R.  A.  52,  and 
cases  cited.  So  the  lex  loci  contractus  governs  in  all  matters  relating 
to  the  substantive  rights  of  the  parties.  Minor,  Confl.  Laws,  §§  305- 
308;  Pritchard  v.  Norton,  106  U.  S.  124,  1  Sup.  Ct.  102,  27  L.  Ed.  104. 
The  rights  which  are  given  by  a  contract,  and  which  become  fixed  and 
definite  immediately  upon  a  breach  of  the  contract,  as  a  necessary  re- 
sult of  giving  the  contract  its  true  meaning  and  effect,  are  of  a  differ- 
ent kind  from  damages  given  for  delay ;  and  these  rights  will  be  en- 
forced by  a  foreign  jurisdiction,  if  there  is  nothing  in  them  against  its 
views  of  public  policy. 

In  the  presenL case  the-^few  York  rontract  was  to  convey  a_certain^ 
piece  of  land.  Its  meaning  and  effect,  according^to  the  jaw  apph'cajjlp 
to  it,  is  that  Jhe  defendant  ,Jactingiir^oodta^^^ 

she  is  unable  to  make  a  good  title,  will  not  give  to  the  plaintiff^thfi- 
profits  df'JYis ^bargain.  but~wlTT^vCIhIm_Jro  him  in  as 

had  not  been  made?    T'his  is^tHF 


true  interpretation  of  the  contract,  reading  it  in  connection  with  the 
law  that  determines  its  effect.  The  contract  cannot  be  m^xle-a-difr 
ferent  contract,  or  given  a  greater  effectr^^brjnging^aiL-aciiQn  upon 
it  ^nanothe£-4urisd  i.ctioii .  The  rights  of  the  parties  are  fixed  by 
the  writing  and  the  law  by  which  it  is  to  be  interpreted.  When  the 
breach  occurred,  the  details  of  the  damage^jyere  immediately  fixed 


Ch.  3)  PROCEDURE.  81 

by  the  writing,  the  law,  and  the  conditions  then  existing.  _  When  the 
present  action  was  brought.  It  was  to  recover  the  damages  due  under 
the  contract.  These  damages  grew  out  of  a  contract  and  transactions 
which  had  been  conckided  in  New  York,  and  were  the  cause  of  action 
on  which  the  plaintiff  seeks  to  recover  here.  There  is  nothing  in  our 
procedure,  or  in  our  mode  of  administering  remedies,  that  can  make 
these  damages  more  or  less.  See  A^ier^^v^JTilden,  15  Gray  (Mass.) 
178,  184,  77  Am.  Dec.  355,  per  Hoaf7j\7^x  par'teHei3er5ack;TXowr 
526,  530,  Fed.  Cas.  No.  6,322. 

We  are  of  opinion,  therefore,  that  the  rule  of  damages  adopted  at 
the  trial  was  wrong,  and  that  the  order  must  be :  Exceptions  sustained. 


l^Jt^- 


DORR  CATTLE  CO.  v.  DES  MOINES  NAT.  BANK 

(Supreme  Court  of  Iowa,  1904.    127  Iowa,  153,  98  N.  W.  918,  102  N.  W.  836.) 

Ladd,  J.^^     In  this  action  the  plaintiff  demands  damages  to  credit    j^p^ 
alleged  to  have  been  caused  by  the  malicious  prosecution  of  attach 
ment  proceedings  in  Cook  county.  111.     *     *     * 

The  only  damages  allowed  were  such  as  resulted  from  the  suppos  _ 

ed  injury  to  plaintiff's  credit.    Was  this  a  proper  element  of  damages  jO^\ 

to  be  taken   into   consideration?     In  the  early   case  of   Campbell   v.     cT^*^ 
Chamberlain,  10  Iowa,  337,  this  court  announced  the  rule  that  in  an  i^    ^>^ 

action  on  an  attachment  bond  "injuries  to  credit  or  character  or  busi-  _  .  ^^  ^^ 
ness  are  too  remote  and  speculative  to  be 'considered  in  an  action  of  v4  '  -  ^^  ^r^ 
this  kind."    This  rule  has  since  prevailed  in  this  state.    Lowenstein  v,  J''^^^  ^.^4* 

Monroe.  55  Iowa,  82,  7  N.  W.  406  ;  Mitchell  v.  Harcourt,  62  Iowa,  349,  ^^^^^''4^ 

17  N.  W.  581;  Tisdale  v.  ]\Iayor,  106  Iowa,  1,  75  N.  W.  663,  68  Am.    \J^ .,  .y/^ 
St.  Rep.  263.     Some  expressions  in  Thomas  v.  Isett,   1  G.  Greene    iy^  -*  ' 

(Iowa)  470,  were  disregarded  in  subsequent  decisions.     The  rule  is  ^  'V*^ 


:^>- 


T*/^ 


also  in  harmony  with  the  weight  of  authority.     Crymble  v.  Mulvanev,      oi^        ^  "S^ 

21  Colo.  203,  40  Pac.  499;    Seattle  Crockery  Co.  v.  Haley,  6  Wash.      0  jJ^ ?m^^ 

302,  33  Pac.  650,  36  Am.  St.  Rep.  156 ;  Elder  v.  Kulner,  97  Cal.  490,      'V*^^  -ff^ 

32  Pac.  563;  Union  Nat.  Bank  of  Chicago  v.  Cross,  100  Wis.  174,  75 

N.  W.  992;   State  v.  Thomas,  19  Mo.  613,  61  Am.  Dec.  580;  Holliday 

v.  Cohen,  34  Ark.  707;    2  Sutherland  on  Damages   (3d  Ed.)   §  512.      ^ 

The  reason   uniformly  given  is  that  such   damages   are  too   remote, 

uncertain,  and  speculative  for  estimation.     *     *     * 

The  cause  of  action,  however,  arose  in  Illinois,  and,  as  noted,  a  dif- 
ferent rule  prevails  there.  In  Lawrence  v.  Hagerman,  56  111.  68,  8 
Am.  Rep.  674,  though  attachment  bond  had  been  given,  suit  was 
Drought  independent  of  the  bond,  and  recovery  allowed  for  damages 
resulting  to  the  defendant's  business  credit  and  reputation  from  mali- 
ciously suing  out  the  attachment  without  probable  cause.     Appellee 

22A  part  of  the  opinion  has  been  omitted. 
LoB.C!oNF.L.— 6 


f 


82  GENERAL  PROVISIONS.  (Part  1 

insists  that  this  right  to  recover  compensatory  damages  for  loss  of 
credit  is  a  part  of  the  cause  of  the  action,  and  should  be  recognized 
by  the  courts  of  this  state.  Appellant  argues  that  the  measure  of 
damages  pertains  to  the  remedy,  and  therefore  the  lex  fori  should  con- 
trol. It  is  not  questioned  but  that,  if  liable  under  the  lex  loci  delicti, 
the  defendant  ought  to  be  held  liable  here.  The  right  to  sue  for  the 
tort,  the  liability  of  the  perpetrator,  and  the  defenses  that  he  may  plead 
are,  with  few  exceptions,  governed  by  the  law  of  the  place.  Minor  on 
Conflict  of  Laws,  §§  196,  197;  22  Am.  &  Eng.  Ency.  of  Law,  1378, 
et  seq.  It  is  likewise  held  that  matters  of  procedure  and  the  remedy 
to  be  applied  are  to  be  determined  by  the  law  of  the  forum.  Minor  on 
Conflict  of  Laws,  §  225 ;  Savary  v.  Savary,  3  Iowa,  271 ;  Shaffer  v. 
Balander,  4  G.  Greene,  201.  But  it  is  often  difficult  to  discern  whether 
a  particular  inquiry  relates  to  the  remedy  or  is  a  substantive  right. 
The  wrong  inflicted,  or  the  right  invaded,  on  which  the  action  is 
based,  must  not  be  confused  with  the  redress  which  the  law  affords. 
For  every  wrong  there  is  a  remedy,  says  the  maxim.  "The  principal, 
and  for  the  most  part  the  only,  available  remedy  which  the  law  can 
give  is  an  award  of  money,  estimated  as  an  equivalent  for  the  damages 
suffered."  Cooley  on  Torts,  64.  Indeed,  "every  action  is  brought  to 
y^'  obtain  some  particular  result,  which  is  termed  a  remedy."     Cohen 

/  ^        V.  Virginia,  6  Wheat.  (U.  S.)  407,  5  L.  Ed.  275.    Tlie  act  complained 

\^         oi  is  always  to  be  diagnosed  in  the  light  of  the  law  of  the  place  wTiere 
committed,  and  its  character  determined  according  to  that  law;    but 
the  particular  kind  of  and  the  extent  of  the  remedy  to  be  applied  neces- 
■■■  sarily  depends  on  the  notions  of  justice  entertained  by  the  forum  by 

/  /    which  it  is  to  be  administered.     The  rule  is  like  that  pertaining  to 

(  j     contracts.     The  lex  loci  determines  their  validity  and  meaning,  but, 

I         lV^      (     when  found  valid,  and  the  true  interpretation  ascertained,  the  law  of 
/  kA^  I     the  forum  steps  in,  and  declares  the  time,  mode,  and  extent  of  the  rem- 

'  \    edy.    Sherman  v.  Gassett,  9  111.  521 ;   Arnold  v.  Potter,  22  Iowa,  194 ; 

Hazel  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  82  Iowa,  477,  48  N.  W.  926. 
The  wrong  averred  in  the  instant  case  was  suing  out  the  writ  of  at- 
tachment without  probable  cause,  and  with  a  malicious  intent,  and 
causing  it  to  be  levied.  This  constituted  a  cause  of  action  in  Illinois, 
precisely  as  it  would  have  in  Iowa.  Tallant  v.  Burlington  Gaslight 
Co.,  36  Iowa,  2G2 ;  Frantz  v.  Hanford,  87  Iowa,  469,  54  N.  W.  474. 
Carraher  v.  Allen,  112  Iowa,  168,  83  N.  W.  902;  Smeaton  v.  Cole, 
120  Iowa,  368,  94  N.  W.  909.  "The  cause  of  action  is  the  right 
claimed  or  the  wrong  suffered  by  the  plaintiff*  on  the  one  hand,  and 
the  duty  or  delict  of  the  defendant  on  the  other;  and  these  appear 
by  the  facts  of  each  separate  case."  Box  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  107  Iowa,  660,  78  N.  W.  694.  See  Van  Patten  v.  Waugh,  122 
Iowa,  302,  98  N.  W.  119.  The  only  injury  suffered  by  the  cattle  com- 
pany, if  any,  was  in  its  credit,  and  for  present  purposes  this  may  be 
conceded  part  of  the  cause  of  action.  Up  to  this  point  the  lex  loci  is 
determinative  of  the  legal   effects  and  incidents  of   what  was   done. 


Ch.  3)  PROCEDURE.  83 

Nothing  is  left  save  to  administer  the  remedy,  and  under  all  authori- 
ties the  character  and  extent  of  the  remedy  is  governed  by  the  law  of  j^^ 
the  forum,  save  where  the  remedy  has  been  created  inferentially  or 
directly  with  the  right  by  statute  and  has  become  a  part  of  it.  See 
Northern  Pac.  Ry.  Co.  v.  Babcock,  151  U.  S.  190,  14  Sup.  Ct.  978,  38 
L.  Ed.  958 ;  Minor  on  Conflict  of  Laws,  §  199 ;  Higgins  v.  Central  N. 
E.  &  W.  R.  Co.,  155  Mass.  176,  29  N.  E.  534,  31  Am.  St.  Rep.  544; 
Leonard  v.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491; 
Herrick  v.  Minneapolis  &  St.  L.  Ry.  Co.,  31  Minn.  11,  16  N.  W.  413, 
47  Am.  Rep.  771 ;  Knight  v.  West  Jersey  R.  Co.,  108  Pa.  250,  56  Am. 
Rep.  200 ;  22  Am.  &  Eng.  Ency.  of  Law,  1387.  Thus,  when  an  ac- 
tion was  brought  in  New  York  for  causing  the  death  of  intestate  in 
Pennsylvania,  the  court  held  that,  as  the  amount  of  damages  to  be 
allowed  in  the  latter  state  was  not  limited,  no  more  than  authorized 
by  statute  in  the  former  could  be  recovered.  Wooden  v.  Western 
N.  Y.  &  P.  R.  Co.,  126  N.  Y.  10,  26  N.  E.  1050,  13  L.  R.  A.  458. 
22  Am.  St.  Rep.  803.  In  Higgins  v.  Central  N.  E.  &  W.  R. 
Co.,  155  Mass.  176,  29  N.  E.  534,  31  Am.  St.  Rep.  544,  the  ac- 
tion was  based  on  a  wrong  committed  in  Connecticut,  resulting  in 
death,  and  the  court  assumed  that  in  bringing  suit  in  Massachusetts 
the  plaintiff  waived  the  right  to  recover  exemplary  damages  not  allow- 
ed there,  but  which  would  have  been  included  had  the  action  been 
tried  in  Connecticut.  In  Evey  v.  Mexican  Cent.  Ry.  Co.,  81  Fed. 
294,  26  C.  C.  A.  407,  38  L.  R.  A.  387,  the  injury  was  suffered  in 
Mexico,  and,  though  damages  peculiar  to  social  position  were  allow- 
able under  the  Mexican  statute,  they  might  be  omitted  in  Texas. 
In  one  portion  of  the  opinion  the  court  remarked:  "Our  opinion  in 
this  branch  of  the  case  is  that  the  difference  in  the  mode  of  arriving 
at  and  administering  the  damages  is  a  matter  which  affects  the  rem- 
edy only."  See,  also,  Mexican  Nat.  Ry.  Co.  v.  Jackson,  89  Tex.  107. 
33  S.  W.  857,  31  L.  R.  A.  276,  59  Am.  St.  Rep.  28.  Says  Minor  in 
his  work  on  Conflict  of  Laws :  "Occasionally  some  point  may  arise 
under  differences  between  the  lex  delicti  and  the  lex  fori  as  to  the 
elements  to  be  taken  into  consideration  in  estimating  the  amount  '.)f 
damage.  Such  matters  pertain  to  the  remedy,  and  are  to  be  con- 
trolled by  the  lex  fori,  since  they  do  not  involve  any  substantive  right." 
The  statement  in  the  American  notes  to  Dicey  on  Conflict  of  Laws 
that  "the  lex  loci  delicti  determines,  in  effect,  *  *  *  ^he  amount 
of  damages  that  may  be  recovered,"  is  not  in  point,  for  the  aiithor  had 
in  mind  statutory  torts,  as  the  decisions  cited  clearly  show. 

A  similar  statement  will  be  found  in  the  third  volume  of  Beale's 
Cases  on  Conflict  of  Laws,  at  page  521,  in  support  of  which  two 
cases  are  cited :  Meyer  v.  Estes,  164  Mass.  457,  41  N.  E.  683,  32  L. 
R.  A.  283,  and  Louisville  R.  Co.  v.  Whitlow's  Adm'r,  19  Ky.  1931,  43 
S.  W.  711,  41  L.  R.  A.  614.  The  former  is  not  in  point,  as  the  action 
was  based  on  a  contract  to  be  performed  in  Massachusetts,  the  state 
of  the  forum.     The  latter  was  an  action  for  the  wrongful  death  of 


84  GENERAL  PROVISIONS.  (Part  1 

a  human  being  in  Tennessee,  the  right  to  recover  for  which  had  been 

created  by  the  statutes  of  that  state.     *     *     * 

In  the  instant  case  no  right  created  by  statute  was  asserted  to  have 
been  violated.  The  rules  of  the  common  law  alone  were  invoked. 
These  obtain  with  equal  force  in  Illinois,  Iowa,  and  other  states.  They 
have  been  adopted,  in  so  far  as  applicable,  from  the  same  common 
source,  and  must  necessarily  be  assumed  to.^  be  the  same  everywhere. 
Mistakes  in  interpretation  may  be  made,  but  the  principles  of  justice 
go  on  forever.  Every  court  will  determine  for  itself  what  these  may  be 
as  found  in  the  common  law.  Franklin  v.  Twogood,  25  Iowa,  520 ; 
National  Bank  v.  Greene,  33  Iowa,  140 ;  Johnson  v.  Ry.,  91  Iowa, 
248,  59  N.  W.  66 ;  6  Am.  Eng.  Enc.  of  Law  (2d  Ed.)  283.  As  said 
in  Ruhe  v.  Buck,  124  Mo.  178,  27  S.  W.  Rep.  412,  25  L.  R.  A.  178, 
40  Am.  Dec.  439 :  "The  spirit  of  comity  does  not  require  that  a  non- 
resident shall  be  allowed  a  remedy  which  is,  by  the  policy  of  the  state 
law,  denied  to  its  own  citizens."  According  to  the  decisions  of  this 
court,  damages  resulting  from  injury  to  credit  are  too  remote,  uncer- 
tain, and  speculative  for  allowance.  The  Supreme  Court  of  Illinois 
has  held  otherwise,  but,  with  all  due  respect  for  that  eminent  tribunal, 
we  have  felt  constrained  to  adhere  to  our  former  conclusion,  the  effect 
of  which  is  to  denounce  the  ruling  of  that  court,  allowing  such  dam- 
ages, as  erroneous  and  contrary  to  the  principles  of  justice  as  admin- 
istered at  the  common  law.  Shall  this  court  stultify  its  notions  of 
justice  by  awarding  a  recovery  contrary  to  what  it  conceives  the  prin- 
ciples of  justice  require,  merely  because  the  injury  occurred  across 
our  borders  instead  of  within  the  state?  Because  the  injury  occurred 
in  Illinois,  are  the  damages  any  less  remote,  uncertain,  and  specula- 
tive? The  decisions  of  neither  state  purport  to  allow  damages  of  this 
character,  and  what  are  such  are  for  the  court  of  this  state  to  deter- 
mine. Necessarily  involved  in  the  administration  of  the  remedy  are 
the  elements  to  be  considered  in  determining  what  it  shall  be.  The 
effects  of  the  wrong  and  injury  are  to  be  ascertained,  but  for  the  sole 
purpose  of  so  advising  the  court  as  to  enable  it  to  apply  the  balm  of 
adequate  reparation.  The  nature  and  extent  of  the  wrong,  everything 
relating  to  its  essence,  is  one  thing;  the  consequences  which  naturally 
flow  from  it  quite  another.  The  right  of  recovery  depends  on  the 
former ;  the  remedy  to  be  applied,  and  its  extent,  upon  the  latter ;  and 
the  law  of  the  forum  necessarily  determines  what  consequences  shall 
be  taken  into  consideration  in  fixing  upon  the  remedy,  for  these  inhere 
in  that  to  be  applied.  It  follows  that,  though  the  law  may  presume 
damages  resulted  from  the  injury,  these  in  the  instant  case  were  so 
remote,  uncertain,  and  speculative  in  character  as  not  to  permit  of 
estimation,    and   nominal    charges    only    should   have   been    allowed. 

*        *        *  23 

Reversed. 

2  3  CoNTTNENTAi.  Law. — The  rule  that  matters  relating  to  the  reiuccly  are 
to  be  determined  by  the  lex  fori,  while  recognized,  has  a  much  more  restrict- 


Ch.  3)  PROCEDURE.  85 

t'd  sphere  of  application  than  it  has  in  England  or  in  the  United  States. 
Much  of  what  our  courts  deem  to  relate  to  the  remedy,  is  held  ou  the  conti- 
nent to  go  to  the  substance ;  for  example,  questions  relating  to  the  burden  of 
proof.  France,  App.  Rouen,  July  25,  1906  (35  Clunet,  382) ;  Italy,  article^OT 
Pi=el.  Disp.  Civ.  Code;  Gei-many,  6  R.  G.  412  (April  17,  lSS2i.  So  as  to 
the  mode  nf  prs^f-  France,  Cass.  June  14,  1899  (S.  1900,  1,  225) ;  Cass.  May 
23,  rS92  ( S.  1802.  1,  521) ;  Italy,  article  10,  Prel.  Disp.  Civ.  Code.  So  a^  tosfit- 
off.  France,  Trib.  Civ.  Nancy,  March  25,  1890  (18  Clunet,  923) ;  Germany,  2G  R. 
(TTgg  (July  1, 1890).  So  as  to  the  statute  of  limitations.  France,  Cass.  May  19, 
1884  (S.  1885,  1,  113) ;  Cass.  Jan.  13,  1869"7sri869,  i;  49),  and  note  by  J.  E. 
Labbo:  App.  Alger.  Aug.  18,  1848  (D.  1849,  2,  130);  App.  Remies.  Jan.  7, 
1908  (35  Clunet,  1101);  Germany,  6  R.  G.  24  (Jan.  17,  1882);  2  R.  G.  13 
(May  18,  1880) ;  Italy,  Cass.  Turin,  June  30.  1882  (Cass.  Tor.  1882,  2,  215) ; 
App.  Genoa,  March  24,  1888  (Circ.  Genov.  1888,  p.  188).  A  few  cases  have 
_aEplied__thfi_i^_fori.  France,  Ttib.  Civ.  Seine,  Nov.  28,  ISSTXTO'^CTunet, 
712);  App.  ReuuesTTNIay  20,  1899  (15  Autran,  25).  See,  also,  Cass.  March 
13,  1900  (D.  1903,  1.  89),  and  note  by  Levillain. 


86  GENERAL  PROVISIONS.  (Part  1 

CHAPTER  IV. 

JUDGMENTS. 


PAINE  V.  SCHENECTADY  INS.  CO. 

(Supreme  Court  of  Rhode  Island,  1876,  1877.     11  R.  I.  411.) 

DuRFEE,  C.  J.  This  is  an  action  of  assumpsit  to  recover  damages 
for  breach  of  contract.  It  was  commenced  in  the  court  of  common 
pleas,  August  27,  1870.  The  plaintiff  recovered  judgment  in  that 
court  at  the  December  term,  1875.  The  defendant  appealed  to  this 
court  at  the  March  term,  1876. .  May  13,  1876,  the  defendant  filed  a 
plea  puis  darrein  continuance,  setting  forth  that  on  the  8th  May,  1876, 
George  T.  Han  ford,  who  had  been  duly  appointed  receiver  of  the  goods 
and  effects  of  the  defendant,  had  impleaded  the  plaintiflf  in  the  Su- 
preme Court,  in  the  state  of  New  York,  and  recovered  judgment 
against  him  for  $1,878.11,.  and  costs,  "which  still  remains  in  full 
force  and  effect,  not  in  an}'  wise  reversed,  annulled,  discharged,  or 
satisfied."  The  plea  sets  forth  the  proceeding  in  the  New  York  suit', 
showing  that  the  plaintiff  therein  pleaded  in  set-off  the  matters  in- 
volved in  this  case,  and  avers  that  the  cause  of  action  and  the  issue 
raised  by  the  pleadings  are  the  same  in  both  suits,  and  that  the  parties 
are  identical.  To  this  plea  the  plaintiff  demurs,  assigning  four  causes 
of  demurrer. 

The  first  cause  is,  that  the  suit  set  forth  in  the  plea  is  not  alleged  to 
have  been  instituted  before  the  commencement  of  the  present  suit. 
And  in  his  brief,  the  counsel  for  the  plaintiflf  contends  that  there  is 
no  precedent  for  such  a  plea  where  the  judgment  was  recovered  by  the 
defendant,  or  was  recovered  in  a  suit  commenced  subsequently  to  the 
suit  in  which  it  was  pleaded. 

We  do  not  see  that  it  makes  any  difference  which  party  has  recover- 
ed judgment.  The  true  question  is,  whether  the  controversy  has  been 
determined  by  a  competent  tribunal  having  jurisdiction;  for,  if  it 
has  been,  the  defendant  has  the  right  to  insist  that  it  shall  not  be  fur- 
ther prosecuted,  unless  for  some  technical  reason  he  cannot  have  the 
benefit  of  the  estoppel.  The  plaintiff  says  he  cannot  have  the  benefit 
of  the  estoppel  because  the  suit  in  this  state  was  first  commenced. 
Is  this  so?  We  think  not.  The  defendant  had  the  right  to_,.sue  the 
plaintiff  in  New  York,  notwithstanding  the  plaintiff  had  sued  him  in 
Rhode  Island.  The  plaintiff,  in  defending  against  the  New  York  suit, 
put  in  issue  the  same  controversy  which  was  in  issue  in  the  Rhode  Is- 
land suit,  and  it  was  decided  against  him.  Why  should  he  not  be  con- 
cluded, and,  if  concluded,  why  should  not  the  defendant  have  the  benefit 


Ch,  4)  JUDGMENTS.  87 

of  tlie  conclusion  by  plea  puis  darrein?  If  the  Judgment  in  New  York 
had  been  recovered  before  the  suit  in  Rhode  Island,  the  defendant 
would  certainly  have  been  entitled  to  plead  it.  Indeed,  such  a  judg- 
ment would  be  pleadable  in  bar  if  recovered  in  a  foreign  country,  and 
a  fortiori,  under  the  federal  Constitution  and  law,  when  recovered  in  a 
sister  state.  Ricardo  v.  Garcias,  12  CI.  &  Fin.  368 ;  Bissell  v.  Briggs, 
9  Mass.  462,  6  Am.  Dec.  88;  Mills  v.  Duryee,  7  Cranch  (U.  S.)  481,  3 
L.  Ed.  411;  2  Am.  Lead.  Gas.  (5th  Ed.)  611  et  seq.,  where  this  sub- 
ject is  discussed,  and  the  cases  fully  cited. 

The  two  cases  of  Baxley  v.  Linah,  16  Pa.  241,.  55  Am.  Dec.  494; 
and  North  Bank  v.  Brown,  50  Me.  214,  79  Am.  Dec.  609,  are  closely 
in  point.  In  Baxley  v.  Linah,  16  Pa.  241,  55  Am.  Dec.  494,  an  action 
was  commenced  in  Maryland  December  30,  1846,  and  in  Pennsylvania, 
for  the  same  cause,  June  2,  1847.  The  defendant  pleaded  the  prior 
pendency  of  the  Maryland  action  in  abatement  to  the  Pennsylvania 
action,  and  the  plea  was  overruled,  the  plea  of  prior  pendency  being 
available  only  when  both  actions  are  pending  in  the  same  state. 
Bowne  v.  Joy,  9  Johns.  (N.  Y.)  221;  Walsh  v.  Durkin,  12  Johns. 
(N.  Y.)  99.  Subsequently,  January  31,  1848,  the  plaintiff  recovered 
judgment  against  the  defendant  in  the  Maryland  action;  and  Decem- 
ber 5,  1849,  the  defendant  pleaded  it  in  bar  puis  darrein  continuance. 
The  plaintiff  demurred.    The  court,  however,  sustained  the  plea. 

The  only  material  difference  between  that  case  and  the  case  at  bar 
is,  that  there  the  judgment 'w'as  recovered  first  in  the  earlier  case,  here 
in  the  later.  But  the  judgment,  whenever  recovered,  is  still  a  judg- 
ment; and  why,  then,  is  it  not  pleadable  as  such?  In  North  Bank 
V.  Brown,  50  Me.  214,  79  Am.  Dec.  609,  the  plaintiff  commenced 
suit  against  the  defendant  in  Maine,  January  11,  1858 ;  and  in  New 
York,  for  the  same  cause,  January  21,  1858.  Judgment  was  first  ob- 
tained in  the  New  York  suit,  and  it  was  held  to  be  a  good  defence  to 
the  suit  in  Maine.  Here  the  judgment  does  not  appear  to  have  been 
specially  pleaded ;  but  if  it  had  been  specially  pleaded,  we  see  no  rea- 
son why  the  decision  would  not  have  been  the  same.  We  think  the 
first  cause  of  demurrer  is  not  sufficient.     *     *     *i 

Demurrer  overruled. 

After  the  foregoing  opinion,  the  plaintiff  replied  to  the  plea  puis 
darrein  continuance  : 

1.  That  the  judgment  of  the  Supreme  Court  of  New  York  set  forth 
in  the  plea  had  been  appealed  from,  and  that  the  suit  wherein  judg- 
ment had  been  given  was  consequently  pending  in  the  Supreme  Court 
of  New  York. 

2.  That  the  receiver  Hanford  acted  without  authority,  and  did  not 
institute  the  New  York  suit  in  behalf  of  the  defendant  corporation 
but  for  himself. 


1  The  balance  of  the  opinion,  discussing  the  other  causes  of  demurrer,  has 
been  omitted. 


88  GENERAL  PROVISIONS.  (Part  1 

3.  That  the  cause  of  action  in  the  New  York  suit  was  not  that  in 
the  present  case. 

All  these  replications  concluded  to  the  country.  The  defendant  de- 
murred to  them  all. 

DuRFEE,  C.  J.  This  is  an  action  of  assumpsit  to  which  the  defend- 
ant pleads  in  bar  a  former  judgment  recovered  in  the  Supreme  Court 
of  the  State  of  New  York.  The  plaintiff  replies  that  the  judgment  has 
been  appealed  from  by  him,  and  the  suit  is  still  pending  in  the  court. 
The  defendant  demurs  to  the  replication. 

The  defendant  contends  that  by  the  law  of  New  York  an  appeal 
does  not  vacate  the  judgment  appealed  from,  but  leaves  it,  until  an- 
nulled or  reversed,  conclusive  upon  the  parties. 

Two  questions  arise  upon  the  demurrers : 

1,  The  first  question  is,  whether  we  can  take  judicial  cognizance  of 
the  law  of  New  York,  or  must  presume  it  to  be  the  same  as  ours  until 
it  is  shown  by  averment  and  proof  to  be  different.  The  decisions  upon 
this  point  are  conflicting,  but  we  think  the  decision  of  the  Supreme 
Court  of  Pennsylvania,  in  State  of  Ohio  v.  Hinchman,  27  Pa.  479, 
rests  upon  the  better  reason.  The  court  there  held,  that,  when  the 
judgment  impleaded  is  the  judgment  of  a  sister  state,  tlie  court  will 
notice  ex  oflicio  the  law  of  the  state  in  which  it  was  rendered.  The 
reason  given  for  this  is,  that,  in  such  a  case,  the  court  acts  under  the 
Constitution  and  laws  of  the  United  States,  which  require  that  the 
judgment  shall  have  in  every  state  the  same  faith  and  credit  which  it 
has  in  the  state  where  it  was  originally  rendered.  In  such  a  case,  it  was 
said,  the  decision  of  the  state  court  is  re-examinable  in  the  Supreme 
Court  of  the  United  States,  which  will,  without  averment  or  proof, 
take  cognizance  of  the  law  of  the  state  in  which  the  record  originates. 
"It  would  be  a  very  imperfect  and  discordant  administration,"  it  was 
further  said,  "for  the  court  of  original  jurisdiction  to  adopt  one  rule 
of  decision,  while  the  court  of  final  resort  was  governed  by  another ; 
and  hence  it  follows  that  in  questions  of  this  sort  we  should  take  no- 
tice of  the  local  laws  of  a  sister  state  in  the  same  manner  the  Supreme 
Court  of  the  United  States  would  do  on  a  writ  of  error  to  our  judg- 
ment." See,  also,  Baxley  v.  Linah,  16  Pa.  241,  55  Am.  Dec.  494 ; 
Rae  V.  Hulbert,  17  111.  572,  578;  Butcher  v.  Bank  of  Brownsville,  3 
Kan.  70,  83  Am.  Dec.  446 ;  2  Am.  Lead.  Cas.  648  et  seq.  We  think 
the  reasoning  is  sound,  and  that  it  is  not  satisfactorily  met  by  courts 
which  adopt  a  different  view.  Rape  v.  Heaton,  9  Wis.  328,  341,  76 
Am.  Dec.  269. 

2.  The  second  question  relates  to  the  conclusiveness  of  the  judgment. 
We  find,  as  claimed  by  the  defendant,  that  by  the  law  of  New  York  an 
appeal,  though  it  may  stay  the  execution  when  proper  security  is  given, 
does  not  affect  the  conclusiveness  of  the  judgment  as  long  as  it  re- 
mains unreversed.  A  judgment  so  appealed  from  is  a  valid  bar  to  an 
action  involving  the  same  controversy.  Sage  v.  Harpending,  49  Barb. 
(N.  Y.)  166;  Harris  v.  Hammond,  18  How.  Prac.  (N.  Y.)  123;  Rath- 


Ch.  4)  JUDGMENTS.  89 

bone  V.  Morris,  9  Abb.  Prac.  (N.  Y.)  213;  Freeman  on  Judgments, 
§  338.  If  the  judgment  would  be  a  good  bar  to  this  action  in  New 
York,  it  is  entitled  to  have  the  same  effect  in  this  state.  Mills  v.  Dur- 
yee,  7  Cranch  (U.  S.)  481,  3  L.  Ed.  411;  McElmoyle  v.  Cohen,  13  Pet. 
(U.  S.)  312,  10  L.  Ed.  177;  Jacquette  v.  Hugunon,  2  McLean  (U.  S.) 
129,  Fed.  Cas.  No.  7,169.  The  case  of  Bank  of  North  America  v. 
Wheeler,  28  Conn.  433,  73  Am.  Dec.  G83,  is  a  case  exactly  in  point. 
After  the  commencement  of  that  case  in  Connecticut  a  judgment  was 
recovered  for  the  same  cause  of  action  in  New  York,  and  it  was  held 
that  the  judgment,  notwithstanding  it  had  been  appealed  from,  was  a 
good  bar  to  the  suit  in  Connecticut;  it  being  found  that,  by  the  law 
of  New  York,  the  appeal  operated  only  as  a  proceeding  in  error  and 
did  not  vacate  the  judgment.  We  think,  therefore,  that  the  demurrer 
to  the  first  replication  must  be  sustained. 

We  will  add,  however,  as  a  matter  of  practice,  that  we  think  the 
pendency  of  the  appeal  in  New  York  may  be  a  good  ground  for  delay- 
ing judgment  here  until  the  appeal  is  disposed  of;  for  otherwise  we 
may  give  the  judgment  here  a  permanently  conclusive  effect,  whereas 
in  New  York,  if  the  appeal  is  successful,  it  will  be  conclusive  only  for 
a>  short  time. 

There  are  two  other  replications  which  are  demurred  to ;  but  we 
think  they  raise  issues  of  fact,  which  the  plaintiff  is  entitled  to  have 
tried.     The  demurrers  to  them  are,  therefore,  overruled.^ 


LYNDE  v.  LYNDE. 

(Supreme  Court  of  the  United  States,  1901.    181  U.  S.  183,  21  Sup.  Ct.  555,  45 

L.  Ed.  810.)  , 

Error  to  the  Supreme  Court  of  the  State  of  New  York. 

Gray^  J.^  *  *  *  gy  ^YiQ  Constitution  and  the  act  of  Congress 
requiring  the  faith  and  credit  to  be  given  to  a  judgment  of  the  court 
of  another  state  that  it  has  in  the  state  where  it  was  rendered,  it  was 
long  ago  declared  by  this  court:  "The  judgment  is  made  a  debt_of 
record,  notexaminable  jipQB  its  meritsj^/buTlr^oes  not  'carFy  with 
it,  i5to~another^ state.  the_efficacy  of  a  judgment  upon  property  or 
persons,  tn  be.  ejif creed  by,  execution.  To  give  it  the  force  of  a  judg- 
ment in  another  state,  it  must  be  made  a  judgment  there,  and  can  only 

2  Continental,  Law. — The  defense  of  lis  pendens  is  recognized  in  Germany 
if  in  the  country  where  the  suit  was  first  instituted  reciprocity  in  this  re- 
spect is  guaranteed.  R.  G.  Jan.  26,  1892  (47  Seuffert's  Archiv,  465);  R.  G. 
April  13,  1901  (30  Clunet.  188).  It  is  not  recognized  in  France.  App.  Paris, 
July  25,  1877  (5  Clunet,  163) ;  App.  Paris,  June  15,  1853  (11  Clunet,  65) ;  App. 
Alger,  Oct.  15,  1902  (31  Clunet.  895).  Nor  in  Italy.  App.  Milan,  April  11, 
18&4  (Monitore  18^,  p.  498);  App.  Genoa,  Sept.  5.  1896  (La  Legge  1896,  2, 
664) ;    Cass.  Turin,  July  27,  1904  (1  Darras,  759),  and  note. 

3  The  statement  of  facts  and  a  part  of  the  opinion  have  been  omitted. 


90  GENERAL  PROVISIONS.  (Part  X 

be  executed  in  the   latter  as  its  laws  may  permit."     McElmovlej^ 

0.^^'       Cohen,.  13  Pet.  312,  325,  10  L.  Ed.  177;    Thompson  v.  Whitman,  18 

r  '     ^  "^all.  457,  463,  21  L.  Ed.  897,  899;    Wisconsin  v.  Pelican^ Ins.  Co., 

Wn-  127  U.  S.  265,  292,  8  Sup.  Ct.  1370,  32XrEdr239r^iiT^ullock ' v. 

Bullock,  51  N.  J.  Eq.  444,  27  Atl.  435 ;    Id.,  52  N.  J.  Eq.  561,  30  Atl. 

676,  27  L.  R.  A.  213,  46  Am.  St.  Rep.  528. 

The  decree  of  the  Court  of  Chaiicery  of  New  Jersey,  on  which  this 
suit  is  brought,  provides,  first,  for  the  payment  of  $7,840  for  alimony 
already  due,  and  $1,000  counsel  fee;  second,  for  the  payment  of  ali- 
mony since  the  date  of  the  decree  at  the  rate  of  $80  per  week;  and, 
third,  for  the  giving  of  a  bond  to  secure  the  payment  of  these  sums, 
and,  on  default  of  payment  or  of  giving  bond,  for  leave  to  apply  for  a 
writ  of  sequestration,  or  a  receiver  and  injunction. 

The  decree,  for  the  payment  _of_$8;840_vyas.Jor_a^^ed  sum  already 
due,  and  the  judgment  of  the  coiirt^below  wagjroperly  j;^£tricted_to 
JhaJ.    The  provi^ionj)f  JJie_payme.nt_fox_aIimianyJ|iJ^ 
ject  tp-the  discretion__Qi_tIie  Court _of_Chan££ry- of  New  Jerspj^^whjrh 
might  at  any  time  alter  it,  and  was  not  a  finaljudgment-fac^a  fixed 
sum?     The  provisjonsi;for  bond7~S£qji£SJ;ration,  r^ceijgr^_and  ipjuiic- 
tion  JU^iog^in  the^nziuve^oi  executioii,__anjd   not  of  Judgment,  could 
have  no  extraterritorial  operation ;  but  the  action  of  the  courts  of  New 
York  irTtBeSe'  respects  depended  on  the  local  statutes  and  practice  of 
the  state,  and  involved  no  federal  question. 
On  the  writ  of  error  of  the  wife,  therefore, 
The  judgment  is  affirmed.* 


PEMBERTON  v.  HUGHES. 

(Conrt  of  Appeal,  1899.    68  L.  J.  Ch.  [N.  S.]  281,  1  Cli.  781.) 

Appeal  from  a  decision  of  Kekewich,  J. 

The  action  was  brought  by  Sarah  Elizabeth  Pemberton,  who  claimed 
to  be  the  widow  of  Francis  Alexander  Pemberton,  who  died  on  Au- 
gust 2,  1892,  for  a  declaration  that  by  virtue  of  a  deed  poll  executed 
by  Mr.  Pemberton,  dated  April  15,  1891,  she  was  entitled  during  her 
life  to  a  yearly  rent  charge  of  £200.  for  her  jointure,  issuing  out  of 
certain  lands  in  Cambridgeshire,  devised  by  the  will  of  one  Christopher 
Pemberton.  The  plaintifiE's  right  to  this  sum  depended  upon  whether 
she  was  the  widow  of  Mr.  Pemberton,  and  that  depended  upon  the 
validity  of  their  alleged  marriage,  and  that  depended  upon  the  va- 

4  Compare  Sistare  v.  Sislare,  218  U.  S.  1.  80  Sup.  Ct.  682,  54  L.  Ed.  905,  28 
L.  R.  A.  (N.  S.)  1068.  20  Ann.  Cas.  1061  (1910) ;  see.  also,  Page  v.  Page,  189 
Mass.  85,  75  N.  E.  92  (1905) ;  Israel  v.  Israel,  148  Fed.  576,  79  O.  C.  A.  32, 
9  L.  R.  A.  (N.  S.)  1168  (1906) ;  Freund  v.  Freund  (N.  J.  Ch.)  63  Atl.  756  (1906). 

No  action  can  be  brought  upon  a  foreign  judgment  which  at  the  time  of 
such  suit  has  lost  its  full  force  in  the  state  where  it  was  rendered.  St. 
Louis  Type  Foundry  Co.  v.  Jackson,  128  Mo.  119,  30  S.  W.  521  (1895).  So 
Italy.    Cass.  Turin,  Sept.  24,  1904  (Monitore  1905,  1,  727). 


Ch.  4)  JUDGMENTS.  91 

lidity  of  a  previous  divorce  of  the  lady  from  a  former  husband  of 
the  name  of  Erwin. 

The  material  facts  were  as  follows : 

In  February,  1884,  the  plaintiff  and  Erwin,  who  v/ere  both  domi- 
ciled and  resident  in  the  state  of  Florida,  were  married  in  that  country 
according  to  the  laws  thereof.  On  January  18,  1888,  Erwin — he  and 
the  plaintiff  being  then  in  Florida — sued  the  plaintiff  for  and  obtained 
a  decree  for  divorce.  This_decree\vaspronounced  byL§— CQUJ*"  having 
jurisdiction  in  Florida-4Q^^2I31gJJB'-'^---'^°'^^^^  lt£la:een_perscms  domi- 
ciled  and  resi5entIin_^lorida^jid  the  decide  had  n^yer  been  set  aside 
or  reversed,  but_jlQ£id-as--*-£nal_aDjd_sub_s^         decree.^ 

On  December  20,  1890,  Erwin  being  still  alive,  the  plaintiff  and  Mr. 
Pemberton  married  in  Florida,  and  they  lived  together  as  man  and 
wife  until  the  death  of  Mr.  Pemberton  in  August,  1892.  Under  the 
will  and  codicil  of  his  grandfather  Christopher  Pemberton,  who  died 
on  October  22,  1850,  Mr.  Pemberton  was  entitled  to  certain  estates  in 
Cambridgeshire  for  his  life,  and  he  had  power  to  charge  them  with  an 
annuity  or  jointure  of  £200.  a  year  in  favor  of  any  woman  whom  he 
should  marry,  or  have  married.  In  exercise  of  this  power  he,  by 
deed  poll  of  April  15,  1891,  appointed  the  £200.  a  year  to  the  plain- 
tiff. The  defendants,  who  were  entitled  to  the  estates,  disputed  the 
validity  of  the  appointment,  contending  that  the  decree  divorcing  the 
plaintiff'  from  her  former  husband,  Erwin,  was  void  and  of  no  eiifcct 
by  the  law  of  Florida.  They  based  their  contention  on  the  ground 
that  the  subpoena  to  appear  did  not  give  the  wife  ten  clear  days  for  ap- 
pearance, the  subpcena  having  been  served  on  the  wife  on  November 
25,  1887,  and  the  time  fixed  for  the  wife's  appearance  being  December 
s;  1887. 

On  behalf  of  the  plaintiff  it  was  contended  that,  having  regard  to 
the  rule  requiring  ten  days'  service  of  notice,  the  terminal  days  might 
be  reckoned  for  the  purpose  of  determining  whether  there  had  been 
effective  process. 

Kekewich,  J-,  was  of  opinion  that  there  should  have  been  ten  clear 
days  between  the  day  of  the  issue  of  the  writ  and  the  day  on  which 
it  was  returnable;  and  on  the  evidence  of  the  experts  he  came  to  the 
conclusion  that  this  defect  in  process  went  to  the  root  of  the  juris- 
diction of  the  court  in  Florida,  and  that  the  decree  of  divorce  was 
consequently  invalid.     He  dismissed  the  plaintiff's  action  with  costs. 

The  plaintiff'  appealed.^ 

LiNDLEY,  M.  p..®  The  evidence  of  the  law  of  Florida  is  not  to 
my  mind  so  clear  as  to  convince  me  that  the  decree  standing  as  it  does 
unimpeached,  could  be  treated  in  a  collateral  proceeding  as  wholly 
null  and  void  even  in  Florida.  *  *  *  Further  information  on  this 
point  could  be   procured,   if  necessary,   under  the  provisions   of  the 

5  The  statement  of  facts  has  been  abridged. 

6A  part  of  the  opinion  of  Lindley,  M.  R.,  and  the  concurring  opinions  of  Rig- 
by  and  Vaughan- Williams,  L.  JJ.,  have  been  omitted. 


92  GENERAL  PROVISIONS.  (Part  1 

foreign  law  ascertainment  act  of  1861   (24  &  25  Vict,  c,  11),  but,  in 
my  opinion,  it  is  not  necessary  to  pursue  this  question  further. 

Assuming  that  the  defendants  are  right,  and  that  the  decree  of  di- 
vorce is  void  by  the  law  of  Florida,  it  by  no  means  follows  that  it 
ought  to  be  so  regarded  in  this  country.  It  sounds  paradoxical  to 
say  that  a  decree  of  a  foreign  court  should  be  regarded  here  as  more 
efficacious  or  with  more  respect  than  it  is  entitled  to  in  the  country 
in  which  it  was  pronounced.  But  this  paradox  disappears  when  the 
principles  on  which  English  courts  act  in  regarding  or  disregarding 
foreign  judgments  are  borfle  in  mind.  If  a  judgment  is  pronoimcg^ 
by  a  foreign  courL-Cffi£lLpgrsons  within  its  jurisdiction,  and  in  a  matter 
with  vyhich_rLJs_com^&tent  t,Q_^al,  ^jiglisir~courts  never_imrestigate 
the  proprietX-Pf  the  proceedings  in  the  foreign  court  unless  theyioffend 
against^  F,ng1ish  views_^_f,,sub^fantj^1__jn^hCfZl^ Wh^^'p  no  substantial 
justice,  according^  to  English _  notions,  is^  offended,  all  that  English 
courts  lookto_are  the  finality  of  the  judgment  andLJthe  jurisdiction 
of  the  court^_Jnjtliig  sense  and  to  this  extetxt=^namely,  its  competence 
to  entertain  the  sort„of  ^a^p  whjrh  ^^  '^^'^  dpa1  ■v^Mf-|1,,£r'^U^^£^;^JPtpnrf 
to  require  the  defendant  to  appear  before  it_  If  the  court  had  juris- 
diction m  this  sense,  and~to  this  extent,  the  courts  of  this  country 
never  inquire  whether  the  jurisdiction  has  been  properly  or  improperly 
exercised,  provided  always  that  no  substantial  injustice,  according  to- 
English  notions,  has  been  committed.  There  is  no  doubt  that  the 
courts  of  this  country  will  not  enforce  the  decisions  of  foreign  courts, 
which  have  no  jurisdiction  in  the  sense  above  explained — that  is,  over 
the  subject-matter  or  over  the  persons  brought  before  them.  Schibsby 
v.  Westenholz,  40  L.  J.  Q.  B.  73 ;  L.  R.  6  Q.  B.  155 ;  Rousillon  v. 
Rousillon  ri880)  49  L.  jT  Ch.  338;  14  Ch.  D.  351;  Price  v.  Dew- 
hurst  (1838)  8  L.  J.  Ch.  57 ;  4  Myl.  &  Cr.  76 ;  Buchanan  v.  Rucker,  1 
Campb.  63,  180b ;  9  East,  192  ;  and  Sirdar  Gurdyal  Singh  v.  Faridkote 
(Rajah)  [1894]  A.  C.  670.  But  th^irisdiction  which  n1nnp  ioj^m- 
portant  in  the^e  mnfter^  is  the  rnixip^4^^^3£ie  of^Hie^corirt  in  an  interna- 
tional sense — that  js^_jts_jterritonaLconTpetenc^  subjectj-matter 
and  over  the  deTendant.  Its  cqmpe^nce  or  jurisdiction  in  any^ other 
sense  is  not  reg-arded_as  material  by^the  courts  oTTIiTs  country.^ 

This  is  pointed  out  in  Westlake  on  Private  International  Law  (3d 
Ed.)  §  328,  and  in  Foote's  Private  International  Jurisprudence  (2d 
Ed.)  p.  547,  and  is  illustrated  by  VanqueHn  v.  Bouard,  33  L.  J.  C.  P. 
78;  15  C.  B.  (N.  S.)  341.  That  was  an  action  on  a  judgment  obtained 
in  France  on  a  bill  of  exchange.  The  court  was  competent  to  try  such- 
actions  and  the  defendant  was  within  its  jurisdiction.  He  let  judgment 
go  by  default,  and  in  the  action  in  this  country  on  the  judgment  he 
pleaded  that  by  French  law  the  French  court  had  no  jurisdiction  because 
the  defendant  was  not  a  trader  and  was  not  resident  in  a  particular 
town  where  the  cause  of  action  arose.  In  other  words,  the  defendant 
pleaded  that  the  French  action  was  brought  in  the  wrong  court.  The 
Court  of  Common  Pleas  held  the  plea  bad,  and  that  the  defence  set 


Ch.  4)  JUDGMENTS.  93 

up  by  it  should  have  been  raised  in  the  French  action.  The  French 
action  in  Vanquehn  v.  Bouard,  33  L.  J.  C.  P.  78;  15  C.  B.  (N.  S) 
341,  was  an  action  in  personam,  and  the  parties  to  the  action  in  France 
were  also  the  parties  to  the  action  brought  in  this  country  on  the 
French  judgment.  The  decision,  therefore,  does  not  exactly  cover  the 
present  case,  but  it  goes  far  to  show  that  the  defendants'  contention  in 
this  case  cannot  be  supported.  The  defendants'  contention  entirely 
ignores  the^djstiaction  be4w££rL_th£Z4um7ti£tion__oOribun  fTonPaiT 
international  and  their- jitfis44p44Qo— from  a  purely  municipaFpoiiirfo f 
view.  But  that  distinction  rests  on  good  sense  and  is  recognized  by 
modern  writers  on  private  international  law.  See  Westlake  and  Foote. 
ubi  supra,  and  Piggott  on  Foreign  Judgments  (2d  Ed.)  p.  139,  and 
following  pages.  He  says  (page  130)  :  "The  jurisdiction  to  pro- 
nounce judgment  in  a  suit  depends  solely  on  the  right  to  summon  a 
person  before  the  tribunal  to  defend  the  suit."  Wharton's  Conflict 
of  Laws  contains  (section  792,  and  following  sections)  a  careful  re- 
view of  the  question  by  a  learned  American  lawyer,  and  he  brings  out 
the  distinction  very  clearly  (sections  801  and  812).  In  section  812 
li^ays,  "The  true  test  seems  to  be  competency  according  to  the  rules 
o^nternational  law;"  and  it  is  plain  that  these  do  not  include  mere 
rules  of  procedure.  In  Dicey's  Conflict  of  Laws  there  are  some  valu- 
able chapters  (XI,  p.  361,  and  XVI,  p.  400),  on  the  jurisdiction  of 
foreign  courts,  and  in  them  will  be  found  various  meanings  of  the 
expression  "court  of  competent  jurisdiction."  These  various  mean- 
ings show  the  danger  of  using  that  expression  without  taking  care  to 
avoid  the  confusion  to  which  they  otherwise  give  rise. 

It  may  be  safely  said  that,  in  the  opinion  of  writers  on  international 
law  and  for  international  purposes,  the  jurisdiction  or  the  competency 
of  a  court  does  not  depend  upon  the  exact  observance  of  its  own  rules 
of  procedure.  The  defendants'  contention  is  based  upon  the  assump- 
tion that  an  irregularity  in  procedure  of  a  foreign  court  of  competent 
jurisdiction  in  the  sense  above  explained  is  a  matter  which  the  courts 
of  this  country  are  bound  to  recognize  if  such  irregularity  involves 
nullity  of  sentence.  No  authority  can  be  found  for  any  such  proposi- 
tion ;  and,  although  I  am  not  aware  of  any  English  decision  exactly 
to  the  contrary,  there  are  many  which  are  so  inconsistent  with  it  as 
to  shew  that  it  cannot  be  accepted.  A  judgment  of  a  foreign  court 
having  jurisdiction  over  the  parties  and  subject-matter — thatjSjJiaving 
jurisdiction  to  t^nrnmon^the  defendants  before  it  and  to  decide  such 
matters  as  it  has  decided — cannot"  be  mipeached  in  this  country  on  its 
merits.  Castrique^vTTmrie,  39  L.  J.  C.  P.  350;  L.  R.  4  H.  L.  414 
(in  rem);  Godard  v.  Gray,  40  L.  J.  Q.  B.  62;  L.  R.  6  Q.  B.  139  (in 
personam);  and  Messina  v.  Petrococchino  [1872]  41  L.  J.  P.  C.  27; 
L.  R.  4  P.  C.  144  (in  personam).  It  is  quite  inconsistent  with  these  ' 
cases,  and  also  with  Vanquelin  v.  Bouard,  33  L.  J.  C.  P.  78 ;  15  C. 
B.  (N.  S.)  341,  to  hold  that  such  a  judgment  can  be  impeached  here 
for  a  mere  error  in  procedure.    And  in  Castrique  v.  Imrie,  39  L.  J.  C. 


94  GENERAL  PROVISIONS.  (Part  1 

P.  350 ;  L.  R.  4  H.  L.  414,  Lord  Colonsay  said  tl?at  no  inquiry  on  such 
a  matter  should  be  made.  A  decree  for  divorcej^ltering  as  it  does  the 
status  of  the  parties,  arid, affecting,  as  many  do,  the  legitimacy  of  their 
after-born  childr^n^  is  mucli_inQre  like  a  judgment  in  rejXLihan  a  judg- 
ment  in^personam.  Niboyet  v.  Niboyet  [1878]  48  L.  J.  P.  1,  5 ;  4 
P.  DTT,  12.  And  where_thexe_ai:e^djffer^nces  b)etween  the  t:vvLa^he 
decisions  on  fordgn_^idgnieiits_in^rern_arej3e^tter^m  for  the  de- 
termination of  this,,ca^e-tharL^.ecisiQns--on^ixar£igj]L4udgments  in  per- 
sonam^  The  leading  recent  cases  on  foreign  judgments  in  rem  are 
Doglioni  v.  Crispin,  35  L.  J.  P.  &  M.  129 ;  L.  R.  1  H.  L.  301,  in  1866, 
Castrique  v.  Imrie,  39  L.  J.  C.  P.  350 ;  L.  R.  4  H.  L.  414,  in  1870,  and 
Trufort,  In  re,  Trafford  v.  Blanc,  57  L.  J.  Ch.  135,  36  Ch.  D.  600, 
in  1887.  There  is  nothing,  however,  in  the  decisions  in  these  cases 
to  assist  the  defendants.  On  the  contrary,  the  judgments  delivered  in 
them  are,  in  my  opinion,  adverse  to  the  defendants'  contention. 

In  Doghoni  v.  Crispin,  35  L.  J.  P.  &  M.  129;  L.  R.  1  H.  L.  301, 
a  Portuguese  court  decided  that  the  respondent  was  the  natural  son  of 
a  deceased  man  domiciled  in  Portugal  and  not  a  noble,  and  that  the 
respondent  was  consequently  entitled  to  succeed  to  his  father's  vmr- 
sonal  estate.  The  appellant  was  a  party  to  those  proceedings,  but  sne 
afterwards  claimed  the  property  in  question  under  a  will  of  the  de- 
ceased. She  was  held  precluded  from  disputing  the  Portuguese  de- 
cree. Lord  Cranworth  distinctly  stated  that  the  decisionJiaYingjDeen 
pronouncgd_by  a  court  of^conipetefl^fttft^dictioft-Ava';  one  which  Kng- 
lish  courts  were  "boundjo  receiY£--Wtthout  inq^ityLas  to  its  conformity 
or  nonconformity  with  the  laws  of  the  country_where_it_'^  pro- 
nQuncedii;  and  a  Ttt fie  Tower  down  he  stated  that,  in  his  opinion,  evi- 
dence to  show  that  the  decision  was  not  in  accordance  with  Portu- 
guese law  ought  not  to  have  been  received.  Lord  Cran worth's  judg- 
ment did  not,  as  I  understand  it,  turn  on  the  fact  that  the  appellant 
was  personally  estopped  from  disputing  the  Portuguese  judgment  be- 
cause she  was  a  party  to  the  proceedings  in  Portugal.  His  decision 
was  based  on  the  competence  of  the  court  and  the  nature  of  the  con- 
troversy before  it. 

It  is  necessary,  however,  to  bear  in  mind  that  undefended  proceed- 
ings for  divorce  require  to  be  very  narrowly  scrutinized,  for  such 
divorces  may  be  easily  connived  at.  It-is  unnecessary  to  consider 
whether  an  English  court  would  recognize  a.foreign  divorce  ;Broyed 
to  have  been  ol^ained  by^collusion,  even  if  the  parties  divorced  were 
foreigners  domiciTed  a"nd~TesTdenF within  the  jurisdiction  of  the  foreign 
court.  No  collusion  is  ireTiedjiipQn]pF^rove3~m^he  present  case.  If, 
thereTore,  the  principles  above  explained  are  correct,  I  see  no  ground 
on  which  an  English  court  can  refuse  to  recognize  the  validity  of  the 
divorce  in  question  in  this  case,  unless  it  be  on  one  or  other  of  the  two 
following  grounds — namely,  first,  that  a  foreign  divorce  decree  pro- 
nounced in  an  undefended  action  will  never  be  recognized  in  this 
country;  or  secondly,  that  the  courts  of  this  country  will  not  recognize 


Ch.  4) 


JUDGMENTS. 


95 


any  divorce,  even  o£  foreigners,  for  any  causes  other  than  those  for 
which  a  divorce  can  be  obtained  in  this  country.  To  lay  down  now 
for  the  first  time  either  of  these  doctrines  is,  in  my  judgment,  quite 
impossible,  nor  were  they  alluded  to  by  counsel.  I  thought  it,  how- 
ever, desirable  to  mention  them  in  order  that  it  might  not  be  supposed 
that  they  had  been  overlooked. 

In  the  result,  the  appeal  must  be  allowed  and  the  judgment  reversed, 
and  a  declaration  be  made  that  the  plaintiff  is  entitled  to  the  £200.  a 
year,  with  an  account  and  order  for  payment.  The  defendants  must 
pay  the  costs  of  the  action  and  of  the  appeal.^ 


THOMPSON  V.  WHITMAN 
(Supreme  Court  of  the  United  States,"  1873.     18  Wall.  457,  21  L.  Ed.  897.) 


<;^ 

^ 


Error  to  the  Circuit  Court  for  the  Southern  District  of  New  York. 

Bradley,  J.^  The  main  question  in  the  cause  is,  whether  the 
record  produced  by  the  defendant  was  conclusive  of  the  jurisdictional 
facts  therein  contained.     It  stated,  with   due  particularity,   sufficient 


^jif^ 


A 


7  Continental  Law. — No  foreign  judgment  will  be  given  effect  in  Ger- 
many unless  it  was  rendered  by  a  court  competent  according  to  the  rules 
governing  the  jurisdiction  of  German  courts.  Section  328,  subd.  1,  Code 
Civ.  Proc. ;  R.  G.  March  8,  1907  (Juristische  Wocheuschrift,  1907,  p.  2G5). 
The,  veTy  court  rendertnij-  thp  j^idg^mpnt  m^ist  he  comnetent.  Competency  of 
the  courts  of  ^hestate  or  conutry  In  gpnprnLJgJQilLjlDIllicb  IfTHe  loreigu 
court  had  jurisdiction  according  to  German  law,  the  fact  that  its  jurisdic- 
tion in  a  particular  case  was  based  upon  a  ground  not  recognized  by  Ger- 
man law,  is  immaterial.    51  R.  G.  135  (March  21,  1902). 

In  France,  also  (semble).  the  particular  court  must  have  had  jurisdictiou.^ 
Cass.  April  27,  1870   (S.  1871,  1,  91) ;    but  in  both  France  and  Italy  the  ques-^T 
tion  of  jurisdiction  is  to  be  determined  on  principl 
rules  obtaining  in  the  country  where  the  judgment  was 
Dec.  20,  1906    (3  Darras.  202);    Cass.   Naples,  Dee 
119).     Such  principle  is  frequently  departed  from 

the  lex  fori  substituted,  on  the  ground  that  the  dispositions  of  the  foreign      y         ^^ 
law  are  exorbitant.     App.  Lyon,  June  18,  1907  (35  Clunet,   158) ;    App.  Aix.      \  AA'*'^ 

July  22,  1901  (S.  1903,  2,  305)  and  note  by  E.  Audinet ;  Cass.  Palermo,  April 
11,  1893  (S.  1895,  4,  21) ;  App.  Naples,  Dec.  30,  1883  (12  Clunet,  464).  Con- 
tra: App.  Chambery,  Aug.  13,  1900  (S.  1903,  2,  305).  Or  by  way  of  retorsion. 
App.  Lyon,  June  18,  1907  (35  Clunet,  158). 

Such  foreign  judgment  will  be  enforced  if  there  was  an  express  or  im- 
plied submission  to  the  foreign  jurisdiction.     Tr.  Com.   Seine,  June  17,  1907 
(35  Clunet,  170);    Apo.  Palermo,  Aug.  4,  1893  (21  Clunet,  918);    Comp.  Ap 
Rennes,  Dec.  26,  1879  (S.  1881,  2,  81). 

The  regularity  of  the  citation  is  likewise  governed  by  the  law  of  the  state 
where  the  judgment  was  rendered.  App.  Paris,  Dec.  20,  1906  (3  Darras,  202) ; 
Cass.  Palermo,  April  11,  1893  (S.  1895,  4.  21);  But_thejnodeof_servi^^  ilc- 
fendant  in  Itnly  in  a  foreifm  suit  has  been  herd~By  me  itaua"h  courlS-liube 


subiect^^to^the  rule-iiloeu«~^eglt  _a.ctuin/^nd  thus  to  be  governed  ~6"y  Italian 
lawn^ass.  TurinTl^Iarch  21,  1892  (MonTEofe-IS92;-p.  481) ;  App.  MttaorT^ffi^ 
4r^«S7  (Monitore  1887,  p.  397).  Contra:  App.  Milan,  Nov.  26,  1888  (Moni- 
tore  1888,  p.  1015) ;  App.  Casale.  Feb.  26,  1907  (35  Clunet,  595) ;  Cass.  Flor- 
ence, May  16,  1907  (35  Clunet,  593). 
8  A  part  of  the  opinion  only  is  given. 


)le,  it  would  seem,  by  the     yf/^'^^ 
was  rendered.    App.  Paris,  -  \r  Qj^"^*^ 

'..  6,  1866  (Annali  1866,  l/^  yC>r 

in  practice,  however,  and  fjr* 

v^ 


-V 


96  GENERAL  PROVISIONS.  (Part  1 

facts  to  give  the  justices  jurisdiction  under  the  law  of  New  Jersey. 
Could  that  statement  be  questioned  collaterally  in  another  action 
brought  in  another  state?  If  it  could  be,  the  ruling  of  the  court  was 
substantially  correct.  If  not,  there  was  error.  It  is  true  that  the 
court  charged  generally  that  the  record  was  only  prima  facie  evidence 
of  the  facts  stated  therein;  but  as  the  jurisdictional  question  was  the 
principal  question  at  issue,  and  as  the  jury  was  required  to  find  special- 
ly thereon,  the  charge  may  be  regarded  as  having  reference  to  the 
question  of  jurisdiction.  And  if  upon  that  question  it  was  correct, 
no  injury  was  done  to  the  defendant. 

Without  that  provision  of  the  Constitution  of  the  United  States 
(article  4,  §  1)  which  declares  that  "full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  state,"  and  the  act  of  Congress  passed  to  carry  it  into 
effect,  it  is  clear  that  the  record  in  question  would  not  be  conclusive 
as  to  the  facts  necessary  to  give  the  justices  of  Monmouth  county 
jurisdiction,  whatever  might  be  its  effect  in  New  Jersey.  In  any 
other  state  it  would  be  regarded  like  any  foreign  judgment;  and  as 
to  a_foreign  judgment  it  is  perfectlyuwell  se^ed  that  the_inqiiiry  js 
always  open,  whether  the  court  by  which  it  was  rendered  had  juris- 
diHron"o|The_persoii,orJ:lie'th^  "Upon  principle,"  says  Chief  Jus- 
tice Marshall,  "it  would  seem  that  the  operation  of  every  judgment 
must  depend  on  the  power  of  the  court  to  render  that  judgment; 
or,  in  other  words,  on  its  jurisdiction  over  the  subject-matter  which 
it  has  determined.  In  some  cases,  that  jurisdiction  unqiiestinnably_de- 
pends  as  well  on  the  statelQ£_iHe,-thing^^'^  nn  t1ig_constitution  of  tlie_ 
£Ourt.  If  by  any  means  whatever  a  prize  court  should  be  induced  to 
condemn,  as  prize  of  war,  a  vessel  which  was  never  captured,  it  could 
not  be  contended  that  this  condemnation  operated  a  change  of  prop- 
erty. Upon  principle,  then,  it  would  seem  that,  to  a  certain  extent, 
the  capacity  of  the  court  to  act  upon  the  thing  condemned,  arising 
from  its  being  within,  or  without,  their  jurisdiction,  as  well  as  the 
constitution  of  the  court,  may  be  considered  by  that  tribunal  which  is 
to  decide  on  the  effect  of  the  sentence."  Rose  v.  Himely,  4  Cranch, 
269,  2  L.  Ed.  608.  To  the  same  effect  see  Story  on  the  Constitution, 
c.  29 ;  1  Greenleaf  on  Evidence,  §  540. 

The  act  of  Congress  above  referred  to  which  was  passed  26th  of  May, 
1790  (Act  May  26, 1790,  c.  11, 1'Stat.  122),  after  providing  for  the  mode 
of  authenticating  the  acts,  records,  and  judicial  proceedings  of  the 
states,  declares,  "and  the  said  records  and  judicial  proceedings,  authen- 
ticated as  aforesaid,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States,  as  they  have  by  law  or  usage  in 
the  courts  of  the  state  from  whence  the  said  records  are  or  shall  be  tak- 
en." It  has  been  supposed  that  this  act,  in  connection  with  the  constitu- 
tional provision  which  it  was  intended  to  carry  out,  had  the  effect  of 
rendering  the  judgments  of  each  state  equivalent  to  domestic  judgments 
in  every  other  state,  or  at  least  of  giving  to  them  in  every  other  state 


Ch.  4)  JUDGMENTS. 


97 


the  same  effect,  in  all  respects,  which  they  have  in  the  state  where 
they  are  rendered.  And  the  language  of  this  court  in  Mills  v.  Duryee, 
7  Cranch  (U.  S.)  484,  3  L.  Ed.  411,  seemed  to  give  countenance  to 
this  idea.  The  court  in  JhgLJ:as£_Jidd^Jha^  the_^ac^gaye  to  the 
judgments  of  each  staIe~dTeIsanie_conclusive  effect,  as  records,  in  all 
the  states,  ?'i^~fVi^y'T^ ^afjhame^a.nd  that  m|  deSeTcouTd  not_be 
pleaded  to  an  actiDn^roughFlhereon  in  another  state.  This  de'cision 
has  never  been  departed  from  in  relatieiv4iLlh£^ge^neral  effectjoTsi^c^ 
judgments  where  the  questions  raised  werejKrt  questions  oFjunsdic- 
tion.  But  where  the  jurisdiction  of-tlie_  court  which  renderecTthe 
judgment  has  been  a<;<;n;iprl^  giiitf  a  different  view  has  prevailed. 
Justice  Story,  wTio  pronounced  the  judgment  in  Mills  v.  Duryee,  in 
his  Commentary  on  the  Constitution,  §  1313,  after  stating  the  general 
doctrine  established  by  that  case  with  regard  to  the  conclusive  effect 
of  judgments  of  one  state  in  every  other  state,  adds :  "But  this  does 
not  prevent  an  inquiry  into  the  jurisdiction  of  the  court  in  which  the 
original  judgment  was  given,  to  pronounce  it;  or  the  right  of  the 
state  itself  to  exercise  authority  over  the  person  or  the  subject-matter. 
The  Constitution  did  not  mean  to  confer  [upon  the  states]  a  new 
power  or  jurisdiction,  but  simply  to  regulate  the  effect  of  the  acknowl- 
edged jurisdiction  over  persons  and  things  within  their  territory." 
In  the  Commentary  on  the  Conflict  of  Laws,  §  609,  substantially  the 
same  remarks  are  repeated,  with  this  addition :  "Itjlhe^Comtitution]  ^ 
did  not  make_the  judgm€at&-jcif_other  states  domestic— jtnigfHents  to 
all  intenfT'and  purposes,  but  only  gave  a  general  validity^  _faith.  and  _ 
credit  to  them,  aTevide'nce.  No  executionjcanjssue  upon  such  judg- 
ments without  a  new  suit  in  the  tribunals  of  other  stales.  And  thev 
enjoy  not  the^JigHlDf  priority'  of  tien^'wlTichIlhey_have  in  jhe_state_ 
where  they  are  pronotmced,  butj:hat  only_whicliJJie-lex_ion  gives  to 
them  by  its  o\ynJcWS_^inllTeir  character  of  foreigE-jlldgliients."  INIany 
cases  in  the  state  courts  are  referred  to  by  Justice  Story  in  support' 
of  this  view.  Chancellor  Kent  expresses  the  same  doctrine  in  nearly 
the  same  words,  in  a  note  to  hjs  Commentaries.  Volume  1_.  p.  281. 
See,  also,  volume  2,  p.  95,  note,  and  cases  cited.  "The  doctrine  in 
Mills  V.  Duryee,"  says  he,  "is  to  be  taken  with  the  qualification  that 
in  all  instances  the  jurisdiction  of  the  court  rendering  the  judgment 
may  be  inquired  into,  and  the  plea  of  nil  debet  will  allow  the  defend- 
ant to  show  that  the  court  had  no  jurisdiction  over  his  person.  It  is 
only  when  the  jurisdiction  of  the  court  in  another  state  is  not  im- 
peached, either  as  to  the  subject-matter  or  the  person,  that  the  record 
of  the  judgment  is  entitled  to  full  faith  and  credit.  The  court  must 
have  had  jurisdiction  not  only  of  the  cause,  but  of  the  parties,  and  in 
that  case  the  judgment  is  final  and  conclusive."  The  learned  com- 
mentator adds,  however,  this  qualifying  remark:  "A  special  plea  in 
bar  of  a  suit  on  a  judgment  in  another  state,  to  be  valid,  must  deny, 
by  positive  averments,  every  fact  which  would  go  to  show  that  the 

LOE.CONF.L.— 7 


98  GENERAL  PROVISIONS.  (Part  1 

court  in  another  state  had  jurisdiction  of  the  person,  or  of  the  subject- 
matter.".    *     *     * 

But  it  must  be  admitted  that  no  decision  has  ever  been  made  on 
the  precise  point  involved  in  the  case  before  us,  in  which  evidence  was 
admitted  to  contradict  the  record  as  to  jurisdictional  facts  asserted 
therein,  and  especially  as  to  facts  stated  to  have  been  passed  upon  by 
the  court. 

But  if  it  is  once  conceded  that_  the  validity-of— a-4udgment  niay 
be  attarTceH^xnllaterftHy  by  p.vij1eiir.e_sh owing  that  the_court  had  no^ 
jurisdiction^t  is.iiCLt_£erceived  how  any  allegation  contained~m~nTe" 
record  itself,  hojwevei-  strohgly"nTade ,  can  affec^  the_right  so  to  gues^^ 
tion  it.  TThe^ery  objecl  of  the  evTdehce  is  to  invalidate  the  paper  as 
a.j;ecord.  TFthat  can  be  successfully  done  no  statements  contained 
therein_have__anyTorce.  If  any  such  statements  could  be  used  to 
prevent  inquiry,  asliglit  form  of  words  might  always  be  adopted  so 
as  effectually  to  nullify  the  right  of  such  inquiry.  Recitals  of  this 
kind  must  be  regarded  like  asseverations  of  good  faith  in  a  deed,  which 
avail  nothing  if  the  instrument  is  shown  to  be  fraudulent.  The  records 
of  the  domestic  tribunals  of  England  and  some  of  the  states,  it  is  true, 
are  held  to  import  absolute  verity  as  well  in  relation  to  jurisdictional 
as  to  other  facts,  in  all  collateral  proceedings.  Public  policy  and  the 
dignity  of  the  courts  are  supposed  to  require  that  no  averment  shall 
be  admitted  to  contradict  the  record.  But,  as  we  have  seen,  that  rule 
has  no  extraterritorial  force. 

It  may  be  observed  that  no  courts  have  more  decidedly  affirmed  the 
doctrine  that  want. of  jurisdiction  may  be  shown  by  proof  to  invalidate 
the  judgments  of  the  courts  of  other  states,  than  have  the  courts  of 
New  Jersey.  The  subject  was  examined  and  the  doctrine  affirmed, 
after  a  careful  review  of  the  cases,  in  the  case  of  Moulin  v.  Trenton 
Mut.  Life  &  Fire  Ins.  Co.,  in  24  N.  J.  Law,  222,  and  again  in  the  same 
case  in  25  N.  J.  Law,  57,  and  in  Ward  v.  Price,  25  N.  J.  Law,  225, 
and  as  lately  as  November,  1870,  in  the  case  of  Gordon  v.  Mackay,  34 
N.  J.  Law,  286.  The  judgment  of  Chief  Justice  Beasley  in  the  last 
case  is  an  able  exposition  of  the  law.  It  was  a  case  similar  to  that  of 
D'Arcy  v.  Ketchum,  in  11  How.  165,  13  L.  Ed.  648,  being  a  judgment 
rendered  in  New  York  under  the  statutes  of  that  state,  before  referred 
to,  against  two  persons,  one  of  whom  was  not  served  with  process. 
"Every  independent  government,"  says  the  Chief  Justice,  "is  at  liber- 
ty  to  prescribe  its  owfTmelHocIsoFjudicial  process,  and  to  declare  j)y 
what"~tgllTT5~parties  shairiBe  brouglrrt^ofe  its  tribunals.  Eiit,-itLthe 
exercise  of  this  power,  ITo  government,  if  it  desires  extraterritorial 
recognition  of  its  acts,  can  violate  those  rights  which  are  universally 
esteemed  fundaniental  and  essential_to  society.  Thus  a  judgment  by 
the  court  of  a  state  against  a  citizen  of  such  state,  in  his  absence,  and 
without  any  notice,  express  or  implied,  would,  it  is  presumed,  be  re- 
garded in  every  external  jurisdiction  as  absolutely  void  and  unenforce- 


Ch.  4)  JUDGMENTS.  99 

able.    Such  would  certainly  be  the  case  if  such  judgment  was  so  ren- 
dered against  the  citizen  of  a  foreign  state." 

On  the  whole,  we  think  it  clear  that  the  jurisdiction  of  the  court  by 
which  a  judgment  is  rendered  in  any  state  may  be  questioned  in  a  col- 
lateral proceeding  in  another  state,  notwithstanding  the  provision  of 
the  fourth  article  of  the  Constitution  and  the  law  of  1790,  and  notwith- 
standing the  averments  contained  in  the  record  of  the  judgment  it- 
self.    *     *     * » 


PENNOYER'v.  NEFF. 

(Supreme  Court  of  the  United  States.  1877.     95  U.  S.  714,  24  L.  Ed.  5G5.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Oregon. 

Field,  J.^°  This  is  an  action  to  recover  the  possession  of  a  tract 
of  land,  of  the  alleged  value  of  $15,000,  situated  in  the  state  of  Oregon. 
The  plaintiff  asserts  title  to  the  premises  by  a  patent  of  the  United 
States  issued  to  him  in  18C6,  under  Act  Cong.  Sept.  27,  1850,  c.  7G. 
9  Stat.  496,  usually  known  as  the  "Donation  Law  of  Oregon."  The 
defendant  claims  to  have  acquired  the  premises  under  a  sheriff's  deed, 
made  upon  a  sale  of  the  property  on  execution  issued  upon  a  judgment 
recovered  against  the  plaintiff  in  one  of  the  circuit  courts  of  the  state. 
The  case  turns  upon  the  validity  of  this  judgment. 

It  appears  from  the  record  that  the  judgment  was  rendered  in  Feb- 
ruary, 1866,  in  favor  of  J.  H.  Mitchell,  for  less  than  $300,  including 
costs,  in  an  action  brought  by  him  upon  a  demand  for  services  as  an 
attorney;  that,  at  the  time  the  action  was  commenced  and  the  judg- 
ment rendered,  the  defendant  therein,  the  plaintiff  here,  was  a  nonresi- 
dent of  the  state,  that  he  was  not  personally  served  with  process,  and 
did  not  appear  therein;  and  that  the  judgment  was  entered  upon  his 
default  in  not  answering  the  complaint,  upon  a  constructive  service  of 
summons  by  publication. 

The  Code  of  Oregon  provides  for  such  service  when  an  action  is 
brought  against  a  nonresident  and  absent  defendant,  who  has  property 
within  the  state.  It  also  provides,  where  the  action  is  for  the  recovery 
of  money  or  damages,  for  the  attachment  of  the  property  of  the  non- 
resident. And  it  also  declares  that  no  natural  person  is  subject  to  the 
jurisdiction  of  a  court  of  the  state,  "unless  he  appear  in  the  court, 

9  To  the  effect  that  the  record  may  be  contradicted  as  to  the  facts  neces- 
sary to  give  the  court  jurisdiction,  see  Cooper  v.  Newell,  173  U.  S.  555,  19 
Sup.  Ct.  506,  43  L.  Ed.  <S08  (1899) ;  Andre^\■s  v.  Andrews,  ISS  U.  S.  14,  23 
Sup.  Ct.  237,  47  L.  Ed.  366  (1903) ;  Old  Wayne  Mut.  Life  Ass'n  v.  IMcDonough^ 
204  U.  S.  8,  27  Sup,  Ct.  236,  51  L.  Ed.  345  (1907).  But  see  Caughran  v.  Gil- 
man,  72  Iowa.  570.  34  N.  W.  423  (1887) ;  Magowan  v.  Magowan,  57  N.  J.  Eq. 
322,  42  Atl.  330  (1899). 

10  The  statement  of  facts,  parts  of  the  opinion,  and  the 'dissenting  opinion 
of  Hunt,  J.,  have  been  omitted. 


100  GENERAL  PROVISIONS.  (Part  1 

or  be  found  within  the  state,  or  be  a  resident  thereof,  or  have  property 
therein;  and,  in  the  last  case,  only  to  the  extent  of  such  property  at 
the  time  the  jurisdiction  attached,"  Construing  this  latter  provision 
to  mean,  that,  in  an  action  for  money  or  damages  where  a  defendant 
does  not  appear  in  the  court,  and  is  not  found  within  the  state,  and 
is  not  a  resident  thereof,  but  has  property  therein,  the  jurisdiction  of 
the  court  extends  only  over  such  property,  the  declaration  expresses 
a  principle  of  general,  if  not  universal,  law.  The  authority  of  every 
tribunal  is  necessarily  restricted  by  the  territorial  limits  of  the  state 
in  which  it  is  established.  Any  attempt  to  exercise  authority  beyond 
those  limits  would  be  deemed  in  every  other  forum,  as  has  been  said 
by  this  court,  an  illegitimate  assumption  of  power,  and  be  resisted  as 
mere  abuse.  D'Arcy  v.  Ketchum,  11  How.  165,  13  L.  Ed.  648.  In 
the  case  against  the  plaintiff,  the  property  here  in  controversy  sold  un- 
der the  judgment  rendered  was  not  attached,  nor  in  any  way  brought 
under  the  jurisdiction  of  the  court.  Its  first  connection  with  the  case 
was  caused  by  a  levy  of  the  execution.  It  was  not,  therefore,  disposed 
of  pursuant  to  any  adjudication,  but  only  in  enforcement  of  a  personal 
judgment,  having  no  relation  to  the  property,  rendered  against  a  non- 
resident without  service  of  process  upon  him  in  the  action,  or  his  ap- 
pearance therein.  The  court  below  did  not  consider  that  an  attachment 
of  the  property  was  essential  to  its  jurisdiction  or  to  the  validity  of 
the  sale,  but  held  that  the  judgment  was  invalid  from  defects  in  the 
affidavit  upon  which  the  order  of  publication  was  obtained,  and  in  the 
affidavit  by  which  the  publication  was  proved. 

There  is  some  difference  of  opinion  among  the  members  of  this  court 
as  to  the  rulings  upon  these  alleged  defects.  The  majority  are_iif 
opinion  that  inasmuch  as  the  statute  requires,  for  an  order  of  publica- 
tion, that  certain  facts  shall  appear  by  affidavit  to  the  satisfaction  of 
the  court  or  judge,  defects  in  such  affidavit  can  only  be  taken  advan- 
tage of  on  appeal,  or  by  some  other  direct  proceeding,  and  cannot  be 
urged  to  impeach  the  judgment  collaterally.     *     *     * 

If,  therefore,  we  were  confined  to  the  rulings  of  the  court  below  up- 
on the  defects  in  the  affidavits  mentioned,  we  should  be  unable  to  up- 
hold its  decision.  But  it  was  also  contended  in  that  court,  and  is  in- 
sisted upon  here,  that  the  judgment  in  the  state  court  against  the  plain- 
tiff was  void  for  want  of  personal  service  of  process  on  him,  or  of  his 
appearance  in  the  action  in  which  it  was  rendered,  and  that  the  prem- 
ises in  controversy  could  not  be  subjected  to  the  payment  of  the  de- 
mand of  a  resident  creditor  except  by  a  proceeding  in  rem ;  that  is,  by 
a  direct  proceeding  against  the  property  for  that  purpose.  If  these 
positions  are  sound,  the  ruling  of  the  Circuit  Court  as  to  the  invalidity 
of  that  judgment  must  be  sustained,  notwithstanding  our  dissent  from 
the  reasons  upon  which  it  was  made.  And  that  they  are  sound  would 
seem  to  follow  from  two  well-established  principles  of  public  law  re- 
specting the  jurisdiction  of  an  independent  state  over  persons  and 
property.     The  several  states  of  the  Union  are  not,  it  is  true,  in  every 


Ch.  4)  JUDGMENTS.  101 

respect  independent,  many  of  the  rights  and  powers  which  originally 
belonged  to  them  being  now  vested  in  the  government  created  by  the 
Constitution.  But,  except  as  restrained  and  limited  by  that  instrument, 
they  possess  and  exercise  the  authority  of  independent  states,  and  the 
principles  of  public  law  to  which  we  have  referred  are  applicable  to 
them.  One  of  these  principles  is,  that  every  state  possesses  exclusive 
jurisdiction  and  sovereignty  over  persons  and  property  within  its  ter- 
ritory. As  a  consequence,  every  state  has  the  power  to  determine  for 
itself  the  civil  status  and  capacities  of  its  inhabitants ;  to  prescribe  the 
subjects  upon  which  they  may  contract,  the  forms  and  solemnities  with 
which  their  contracts  shall  be  executed,  the  rights  and  obligations 
arising  from  them,  and  the  mode  in  which  their  validity  shall  be  deter- 
mined and  their  obligations  enforced;  and  also  to  regulate  the  man- 
ner and  conditions  upon  which  property  situated  within  such  territory, 
both  personal  and  real,  may  be  acquired,  enjoyed,  and  transferred. 
The  other  principle  of  public  law  referred  to  follows  from  the  one 
mentioned;  that  is,  that  no  state  can  exercise  direct  jurisdiction  and 
authority  over  persons  or  property  without  its  territory.  Story,  Confl. 
Laws,  c.  2;  Wheat.  Int.  Law,  pt.  2,  c.  2.  The  several  states  are  of 
equal  dignity  and  authority,  and  the  independence  of  one  implies  the 
exclusion  of  power  from  all  others.  And  so  it  is  laid  down  by  jurists,' 
as  an  elementary  principle,  that  the  laws  of  one  state  have  no  operation 
outside  of  its  territory,  except  so  far  as  is  allowed  by  comity ;  and 
that  no  tribunal  established  by  it  can  extend  its  process  beyond  that 
territory  so  as  to  subject  either  persons  or  property  to  its  decisions. 
"Any  exertion  of  authority  of  this  sort  beyond  this  limit,"  says  Story, 
"is  a  mere  nullity,  and  incapable  of  binding  such  persons  or  property 
in  any  other  tribunals."    Story,  Confl.  Laws,  §  539. 

But  as  contracts  made  in  one  state  may  be  enforceable  only  in  an- 
other state,  and  property  may  be  held  by  nonresidents,  the  exercise 
of  the  jurisdiction  which  every  state  is  admitted  to  possess  over  per- 
sons and  property  within  its  own  territory  will  often  affect  persons  and 
property  without  it.  To  any  influence  exerted  in  this  way  by  a  state 
affecting  persons  resident  or  property  situated  elsewhere,  no  objection 
can  be  justly  taken ;  whilst  any  direct  exertion  of  authority  upon 
them,  in  an  attempt  to  give  ex-territorial  operation  to  its  laws,  or  to 
enforce  an  ex-territorial  jurisdiction  by  its  tribunals,  would  be  deemed 
an  encroachment  upon  the  independence  of  the  state  in  which  the  per- 
sons are  domiciled  or  the  property  is  situated,  and  be  resisted  as  usur- 
pation. 

Thus  the  state,  through  its  tribunals,  may  compel  persons  domiciled 
within  its  limits  to  execute,  in  pursuance  of  their  contracts  respecting 
property  elsewhere  situated,  instruments  in  such  form  and  with  such 
solemnities  as  to  transfer  the  title,  so  far  as  such  formalities  can  be 
complied  with;  and  the  exercise  of  this  jurisdiction  in  no  manner  in- 
terferes with  the  supreme  control  over  the  property  by  the  state 
within  which  it  is  situated.     Penn  v.   Lord   Baltimore,   1  Ves.  444; 


102  GENERAL  PROVISIONS.  (Part  1 

Massie  v.  Watts,  6  Cranch,  148,  3  L.  Ed.  181;  Watkins  v.  Holman, 
16  Pet.  25,  10  L.  Ed.  873 ;  Corbett  v.  Nutt,  10  Wall.  464,  19  L.  Ed.  976. 

So  the  state,  through  its  tribunals,  may  subject  property  situated 
within  its  limits  owned  by  nonresidents  to  the  payment  of  the  demand 
of  its  own  citizens  against  them;  and  the  exercise  of  this  jurisdiction 
in  no  respect  infringes  upon  the  sovereignty  of  the  state  where  the 
owners  are  domiciled.  Every  state  owes  protection  to  its  own  citi- 
zens; and,  when  nonresidents  deal  with  them,  it  is  a  legitimate  and 
just  exercise  of  authority  to  hold  and  appropriate  any  property  own- 
ed by  such  nonresidents  to  satisfy  the  claims  of  its  citizens.  It  is  in 
virtue  of  the  state's  jurisdiction  over  the  property  of  the  nonresident 
situated  within  its  limits  that  its  tribunals  can  inquire  into  that  non- 
resident's obligations  to  its  own  citizens,  and  the  inquiry  can  then  be 
carried  only  to  the  extent  necessary  to  control  the  disposition  of  the 
property.  If  the  nonresident  have  no  property  in  the  state,  there  is 
nothing  upon  which  the  tribunals  can  adjudicate.     *     *     * 

If,  without  personal  service,  judgments  in  personam,  obtained  ex 
parte  against  nonresidents  and  absent  parties,  upon  mere  publication 
of  process,  which,  in  the  great  majority  of  cases,  would  never  be  seen 
by  the  parties  interested,  could  be  upheld  and  enforced,  they  would  be 
the  constant  instruments  of  fraud  and  oppression.  Judgments  for  all 
sorts  of  claims  upon  contracts  and  for  torts,  real  or  pretended,  would 
be  thus  obtiiined,  under  which  property  would  be  seized,  when  the  evi- 
dence of  the  transactions  upon  which  they  were  founded,  if  they  ever 
had  any  existence,  had  perished.  ' 

Substituted  service  by  publication,  or  in  any  other  authorized  form, 
may  be  sufficient  to  inform  parties  of  the  object  of  proceedings  taken 
where  property  is  once  brought  under  the  control  of  the  court  by  sei- 
zure or  some  equivalent  act.  The  law  assumes  that  property  is  al- 
ways in  the  possession  of  its  owner,  in  person  or  by  agent;  and  it 
proceeds  upon  the  theory  that  its  seizure  will  inform  him,  not  only 
that  it  is  taken  into  the  custody  of  the  court,  but  that  he  must  look  to 
any  proceedings  authorized  by  law  upon  such  seizure  for  its  condem- 
nation and  sale.  Such  service  may  also  be  sufficient  in  cases  where 
the  object  of  the  action  is  to  reach  and  dispose  of  property  in  the  state, 
or  of  some  interest  therein,  by  enforcing  a  contract  or  a  lien  respect- 
ing the  same,  or  to  partition  it  among  different  owners,  or.  when  the 
public  is  a  party,  to  condemn  and  appropriate  it  for  a  public  purpose. 
In  other  words,  such  service  may  answer  in  all  actions  which  are  sub- 
stantialh'  proceedings  in  rem.  But  where  the  entire  object  of  the 
action  is  to  determine  the  personal  rights  and  obligations  of  the  de- 
fendants, that  is,  where  the  suit  is  merely  in  personam,  constructive 
service  in  this  form  upon  a  nonresident  is  ineffectual  for  any  purpose. 
Process  from  the  tribunals  of  one  state  cannot  run  into  another  state, 
and  summon  parties  there  domiciled  to  leave  its  territory  and  respond 
to  proceedings  against  them.  Publication  of  process  or  notice  within 
the  state  where  the  tribunal  sits  cannot  create  any  greater  obligation 


Ch.  4)  JUDGMENTS.  103 

upon  the  nonresident  to  appear.  Process  sent  to  him  out  of  the  state, 
and  process  published  within  it,  are  equally  unavailing  in  proceedings 
to  establish  his  personal  liability. 

The  want  of  authority  of  the  tribunals  of  a  state  to  adjudicate  upon 
the  obligations  of  nonresidents,  where  they  have  no  property  within  its 
limits,  is  not  denied  by  the  court  below :  but  the  position  is  assumed, 
that,  where  they  have  property  within  the  state,  it  is  immaterial  wheth- 
er the  property  is  in  the  first  instance  brought  under  the  control  of  the 
court  by  attachment  or  some  other  equivalent  act,  and  afterwards  ap- 
plied by  its  judgment  to  the  satisfaction  of  demands  against  its  ov;ner; 
or  such  demands  be  first  established  in  a  personal  action,  and  the  prop- 
erty of  the  nonresident  be  afterwards  seized  and  sold  on  execution. 
But  the  answer  to  this  position  has  already  been  given  in  the  statement, 
that  the  jurisdiction  of  the  court  to  inquire  into  and  determine  his  ob- 
ligations at  all  is  only  incidental  to  its  jurisdiction  over  the  property. 
Its  jurisdiction  in  that  respect  cannot  be  made  to  depend  upon  facts 
to  be  ascertained  after  it  has  tried  the  cause  and  rendered  the  judg- 
ment. If  the  judgment  be  previously  void,  it  will  not  become  valid  by 
the  subsequent  discovery  of  property  of  the  defendant,  or  by  his  subse- 
quent acquisition  of  it.  The  judgment,  if  void  when  rendered,  will  al- 
ways remain  void :  it  cannot  occupy  the  doubtful  position  of  being  valid 
if  property  be  found,  and  void  if  there  be  none.  Even  if  the  position 
assumed  were  confined  to  cases  where  the  nonresident  defendant  pos- 
sessed property  in  the  state  at  the  commencement  of  the  action,  it  would 
still  make  the  validity  of  the  proceedings  and  judgment  depend  upon 
the  question  whether,  before  the  levy  of  the  execution,  the  defendant 
had  or  had  not  disposed  of  the  property.  If  before  the  levy  the  prop- 
erty should  be  sold,  then,  according  to  this  position,  the  judgment 
would  not  be  binding.  This  doctrine  would  introduce  a  new  element  of 
uncertainty  in  judicial  proceedings.  The  contrary  is  the  law :  the  valid- 
ity of  every  judgment  depends  upon  the  jurisdiction  of  the  court  before 
it  is  rende'fSd,  not  upon  what  may  occur  subsequently.     *     *     * 

Except  in  cases  affecting  the  personal  status  of  the  plaintiff",  and 
cases  in  which  that  mode  of  service  may  be  considered  to  have  been  as- 
sented to  in  advance,  as  hereinafter  mentioned,  the  substituted  service 
of  process  by  publication,  allowed  by  the  law  of  Oregon  and  by  similar 
laws  in  other  states,  where  actioiis  are  brought"^gainst  nonresidents,  is 
effectual  only  where,  in  connection  with  process  against  the  person  for 
cormnencing  the  action,  property  in  the  state  is  brought  under  the  con- 
trol of  the  court,  and  subjected  to  its  disposition  by  process  adapted  to 
that  purpose,  or  where  the  judgment  is  sought  as  a  means  of  reaching 
such  property  or  affecting  some  interest  therein ;  in  other  words,  where 
the  action  is  in  the  nature  of  a  proceeding  in  rem.  As  stated  by  Cooley 
in  his  Treatise  on  Constitutional  Limitations,  405,  for  any  other  pur- 
pose than  to  subject  the  property  of  a  nonresident  to  valid  claims 
against  him  in  the  state,  "due  process  of  law  would  require  appearance 


104  GENERAL  PROVISIONS.  (Part  1 

or  personal  service  before  the  defendant  could  be  personally  bound  by 
any  judgment  rendered." 

It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rem  is  one  taken  di- 
rectly against  property,  and  has  for  its  object  the  disposition  of  the 
property,  without  reference  to  the  title  of  individual  claimants;  but, 
in  a  larger  and  more  general  sense,  the  terms  are  applied  to  actions  be- 
tween parties,  where  the  direct  object  is  to  reach  and  dispose  of  prop- 
erty owned  by  them,  or  of  some  interest  therein.  Such  are  cases  com- 
menced by  attachment  against  the  property  of  debtors,  or  instituted  to 
partition  real  estate,  foreclose  a  mortgage,  or  enforce  a  lien.  So  far 
as  they  affect  property  in  the  state,  they  are  substantially  proceedings 
in  rem  in  the  broader  sense  which  we  have  miCntioned. 

It  is  hardly  necessary  to  observe,  that  in  all  we  have  said  we  have 
had  reference  to  proceedings  in  courts  of  first  instance,  and  to  their 
jurisdiction,  and  not  to  proceedings  in  an  appellate  tribunal  to  review 
the  action  of  such  courts.  The  latter  may  be  taken  upon  such  notice, 
personal  or  constructive,  as  the  state  creating  the  tribunal  may  provide. 
They  are  considered  as  rather  a  continuation  of  the  original  litigation 
than  the  commencement  of  a  new  action.  Nations  v.  Johnson,  24  How. 
195,  16  L.  Ed.  628. 

It  follows  from  the  views  expressed  that  the  personal  judgment 
recovered  in  the  state  court  of  Oregon  against  the  plaintiff  herein, 
then  a  nonresident  of  the  state,  was  Vv^ithout  any  validity,  and  did  not 
authorize  a  sale  of  the  property  in  controversy. 

To  prevent  any  misapplication  of  the  views  expressed  in  this  opin- 
ion, it  is  proper  to  observe  that  we  do  not  mean  to  assert,  by  any  thing 
we  have  said,  that  a  state  may  not  authorize  proceedings  to  determine 
the  status  of  one  of  its  citizens  towards  a  nonresident,  which  would  be 
binding  within  the  state,  though  made  without  service  of  process  or 
personal  notice  to  the  nonresident.  The  jurisdiction  which  every  state 
possesses  to  determine  the  civil  status  and  capacities  of  all  its  inhabit- 
ants involves  authority  to  prescribe  the  conditions  on  which  proceed- 
ings affecting  them  may  be  commenced  and  carried  on  within  its  terri- 
tory. The  state,  for  example,  has  absolute  right  to  prescribe  the  condi- 
tions upon  which  the  marriage  relation  between  its  own  citizens  shall 
be  created,  and  the  causes  for  which  it  may  be  dissolved.  One  of  the 
parties  guilty  of  acts  for  which,  by  the  law  of  the  state,  a  dissolution 
may  be  granted,  may  have  removed  to  a  state  where  no  dissolution  is 
permitted.  The  complaining  party  would,  therefore,  fail  if  a  divorce 
were  sought  in  the  state  of  the  defendant ;  and  if  application  could  not 
be  made  to  the  tribunals  of  the  complainant's  domicile  in  such  case, 
and  proceedings  be  there  instituted  without  personal  service  of  process 
or  personal  notice  to  the  offending  party,  the  injured  citizen  would  be 
without  redress.     Bish.  Marr.  &  Div.  §  156. 

Neither  do  we  mean  to  assert  that  a  state  may  not  require  a  non- 
resident entering  into  a  partnership  or  association  within  its  limits, 
or  making  contracts  enforceable  there,  to  appoint  an  agent  or  repre- 


Ch.  4)  JUDGMENTS.  105 

sentative  in  the  state  to  receive  service  of  process  and  notice  in  legal 
proceedings-  instituted  with  respect  to  such  partnership,  association, 
or  contracts,  or  to  designate  a  place  where  such  service  may  be  made 
and  notice  given'  and  provide,  upon  their  failure,  to  make  such  ap- 
pointment or  to  designate  such  place  that  service  may  be  made  upon  a 
public  officer  designated  for  that  purpose,  or  in  some  other  prescribed 
way,  and  that  judgments  rendered  upon  such  service  may  not  be  bind- 
ing upon  the  nonresidents  both  within  and  without  the  state.  As  was 
said,  by  the  Court  of  Exchequer  in  Vallee  v.  Dumergue,  4  Exch.  290 : 
"It  is  not  contrary  to  natural  justice  that  a  man  who  has  agreed  to  re- 
ceive a  particular  mode  of  notification  of  legal  proceedings  should  be 
bound  by  a  judgment  in  which  that  particular  mode  of  notification 
has  been  followed,  even  though  he  may  not  have  actual  notice  of 
them,"  See,  also,  Lafayette  Ins.  Co.  v.  French,  18  How.  404,  15  L. 
Ed.  451,  and  Gillespie  v.  Commercial  Mut.  IMarine  Ins.  Co.,  12  Gray 
(Mass.)  201,  71  Am.  Dec.  743.  Nor  do  we  doubt  that  a  state,  on 
creating  corporations  or  other  institutions  for  pecuniary  or  charitable 
purposes,  may  provide  a  mode  in  which  their  conduct  may  be  investi- 
gated, their  obligations  enforced,  or  their  charters  revoked,  which 
shall  require  other  than  personal  service  upon  their  officers  or  members. 
Parties  becoming  members  of  such  corporations  or  institutions  would 
hold  their  interest  subject  to  the  conditions  prescribed  by  law.  Copin 
v.  Adamson,  Law  Rep.  9  Ex.  345. 

In  the  present  case,  there  is  no  feature  of  this  kind,  and,  conse- 
quently, no  consideration  of  what  would  be  the  effect  of  such  legisla- 
tion in  enforcing  the  contract  of  a  nonresident  can  arise.  The  ques- 
tion here  respects  only  the  validity  of  a  money  judgment  rendered  in 
one  state,  in  an  action  upon  a  simple  contract  against  the  resident  of 
another,  without  service  of  process  upon  him,  or  his  appearance 
therein. 

Judgment  affirmed.^^ 


CARPENTER  v.  STRANGE. 

(Supreme  Coin-t  of  the  United  States,  1891.     141  U.  S.  87,  11  Sup.  Ct.  960,  35 

L.  Ed.  640.) 

FULLER,  C.  J. ^2  *  *  *  'pj^g  judgment  or  decree  of  the  New 
York  court  was  entitled  to  the  same  credit  and  effect  in  the  state  of 
Tennessee  that  it  had  in  the  state  of  New  York  where  it  was  rendered. 
Did  it  receive  it?     *     *     * 

11  The  effect  of  proceedings  in  rem  upon  property  within  the  jurisdiction  of 
the  court  will  be  recognized  in  other  countries  to  which  such  property  is  sub- 
sequently removed.  Castrique  v.  Imrie,  L.  R.  4  H.  L.  414  (1870).  See,  also. 
Rose  V.  Himely,  4  Cranch  (U.  S.)  241,  2  L.  Ed.  60S  (180S).  But  if  such  foreign 
proceeding  was  merely  one  in  personam  it  will  not  be  enforced  elsewhere  by 
proceedings  in  rem.    The  City  of  Mecca,  6  Prob.  Div.  (C.  A.)  106  (1881).      "^ 

12 A  part  of  the  opinion  only  is  given. 


106  GENERAL  PROVISIONS.  (Part  1 

The  real  estate  was  situated  in  Tennessee,  and  governed  by  the 
law  of  its  situs ;  and  while,  by  means  of  its  power  over  the  person  of 
a  party,  a  court  of  eguity  may,  in  a  properjcase,  compel  him  to  actjn 
relation  to  property  not  witElirits  jurisdiction,  its^  decree  does  not  oper- 
ate directTy~upon""{lTe^opertv,  nor  affect  the  title^hut^i^s^made  effectual 
througlT the_coercipn  of^ the  defendant;  as,  for  instance,  by  directing 
a  deed  to  be  executed  or  canceled  by  or  on_behaIf  of  the  party.  The 
court  "has-no  inherent  power^by^the  mere  force  of  its  decree,  to^ annul 
a  deed,~or  to  estabhsh  a  title^'^  Hart  v.  Sansom,  110  U.  S.  151,~i55, 
3  Supr"Ctr1)SB7~28"C  Ed.  101.  Hence,  although  in  cases  of  trust,  of 
contract,  and  of  fraud  the  jurisdiction  of  a  court  of  chancery  may  be 
sustained  over  the  person,  notwithstanding  lands  not  within  the  juris- 
diction may  be  affected  by  the  decree  (Massie  v.  Watts,  6  Cranch,  148, 
3  L.  Ed.  181),  yet  it  does  not  follow  that  such  a  decree  is  in  itself 
necessarily  binding  upon  the  courts  of  the  state  where  the  land  is 
situated.  To  declare  the  deed  to  Mrs.  Strange  null  and  void,  in  vir- 
tue alone  of  the  decree  in  New  York,  would  be  to  attribute  to  that  de- 
cree the  force  and  effect  of  a  judgment  in  rem  by  a  court  having  no 
jurisdiction  over  the  res.  By  its  terms,  no  provision  whatever  was 
made  for  its  ei«forcement  as  against  Mrs.  Strange  in  respect  of  the  real 
estate.  No  conveyance  was  directed,  nor  was  there  any  attempt  in  any 
way  to  exert  control  over  her,  in  view  of  the  conclusion  that  the  court 
announced.  Direct  action  upon  the  real  estate  was  certainly  not  with- 
in the  power  of  the  court ;  and  as  it  did  not  order  Mrs.  Strange  to  take 
any  action  with  reference  to  it,  and  she  took  none,  the  courts  of  Ten- 
nessee were  not  obliged  to  surrender  jurisdiction  to  the  courts  of  New 
York  over  real  estate  in  Tennessee,  exclusively  subject  to  its  laws  and 
the  jurisdiction  of  its  courts.  Story,  Confl.  Laws,  §  543 ;  Whart.  Confl. 
Laws,  §§  288,  289 ;  Watkins  v.  Holman,  16  Pet.  25,  10  L.  Ed.  873 ; 
Northern  Indiana  R.  Co.  v.  Michigan  Cent.  R.  Co.,  15  How.  233,  14 
L.  Ed.  674;  Davis  v.  Headley,  22  N.  J.  Eq.  115;  Miller  v.  Birdsong, 
7  Baxt.  (Tenn.)  531;  Cooley  v.  Scarlett,  38  111.  316,  87  Am.  Dec.  298; 
Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192.    ^ 


/^ 


i,^ 


^        d"^  f  whether  under  and  by  virtue  ot  the  decree  ot  the  circuit  court  ot  Ken- 

4/{r     tr      J*     tucky  and  the  master's  deed  made  in  pursuance  thereof,  or  of  either 

^y    I  ^C'        i/^  ^^  'Jhe  statement  of  facts  has  been  omitted. 


BURNLEY  V.  STEVENSON. 

(Supreme  Court  of  Ohio,  1873.    24  Ohio  St.  474,  15  Am.  Rep.  621.) 

MclLVAlNE,  J.^^  The  main  proposition  submitted  in  this  case  is, 
whether  under  and  by  virtue  of  the  decree  of  the  circuit  court  of  Ken- 
tucky and  the  master's  deed  made  in  pursuance  thereof,  or  of  either 
of  them,  such  an  estate  or  right  was  vested  in  John  Evans  as  entitles 
defendant,  who  has  succeeded  to  all  the  rights  of  Evans,  to  the 


Ch.  4)  JUDGMENTS.  107 

possession  of  the  lands  in  controversy,  as  against  the  plaintiffs,  whose 
claim  of  title  is  derived  from  the  parties  against  whom  the  decree  was 
rendered. 

1.  The  jurisdiction  of  the  circuit  court  to  pronounce  the  decree,  is 
the  first  inquiry  involved  in  this  proposition. 

It  appears  from  the  record  before  us,  that  the  circuit  court  of  Ken- 
tucky, which  pronounced  the  decree,  was  a  court  of  general  equity 
jurisdiction;  that  some  of  the  defendants  in  the  cause  were  properly 
served  with  the  jprocess_Qf__the  courts  ancT  that^ll_^thers^^olui}tanly 
appeared  and  submitted  JiieiiLselves  to  its  jurisdiction,  and  that  the 
subject-mjitteiLjii  th^-bilLnti^wliich  the^decree'was  rendered,  was  th£ 
enforcement  Q£.,a_trust  and  the  specific~perIormance  of  a  contractto 
convey  lands..sitiiat£_injthe  State  ofOhio. 

That  rourf^^fxprriping-  rhnnrfry^ powers  ilI_Qne  state  have  jurisdic- 
tion to  enforce  a  tru£t.,-aad,_to_cpiTipel  die  specific  performance  of  a 
contract  in  relation  to  lands  situate  m  anpther^state,  afteFlra^ing'  ob- 
tained  jurisdiction_of  the  persons  of  tHose~upon  whonTthe, obligation 
rests,  is  a  doctrine  fully  spftled  _by-n.nmeron'^  rjpt'i'^inn-s  Penn  V.  Lord 
Baltimore,  rTes.  444;  Massie  v.  Watts,  6  Cranch  (U.  S.)  148,  3 
L.  Ed.  181;  Penn  v.  Hayward,  14  Ohio  St.  302,  and  cases  therein 
cited. 

2.  It  does  not  follow,  however,  that  a  court  having  power  to  compel 
the  parties  before  it  to  convey  lands  situated  in  another_stote,  may 
make  its  own  decree  to  Qp^rale  as  Siicli  conveyance.  Indeed,  it  is  well 
settled  tEaTthe  decree  of  such  court  can  not  operate  to  transfer^ t it] -j 
to  lands  sit^uatejn  a  iorSgn  JurfsldictTon. '  AhdTHsTfoF  the  reason  that 
a  judgment  or  decree  in  rem  can  not  operate  beyond  the  limits  of  the 
jurisdiction  or  state  wherein  it  is  rendered.  And_if  a  decree  in  such 
case  can  not^effecf  the  J:ransf er  of  the  title  to  suchTan"ds7Tt  is  clear 
that  a~dee3l£xe£iit£dJ3y_^— iiiast£r,_jAn^^ 

can  have  no  greater  effficL-  Watts  v.  Waddle,  6  Pet.  (U.  S.)  389, 
8  L.  Ed.  437;  Page  v.  McKee,  3  Bush  (Ky.)  135,  96  Am.  Dec.  201. 
The  master'j^eed  to  Evansjnust^thereforp  he  rp.g-arded  as  a  nullity. 

The  next  inquiry  then  is  as  to  the  force  and  effect  of  the  decree  ren- 
dered by  the  Circuit  Court  directing  the  heirs  of  pen.  Scott  to  convey 
the  land  in  Ohio  to  Evans.  This  decree  was  in  personam,  and  bound 
the  consciences  of  those  against  whom  it  was  rendered.  In  it,  the  con- 
tract of  their  ancestor  to  make  the  conveyance  was  merged.  The  fact 
that  the  title  which  had  descended  to  them  was  held  by  them  in  trust 
for  Evans,  was  thus  established  by  the  decree  of  a  court  of  compe- 
tent jurisdiction.  Such  decree  is  record  evidence  of  that  fact,  and 
also  of  the  fact  that  it  became  and  was  their  duty  to  convey  the  legal 
title  to  him.  The  performance  of  that  duty  might  have  been  enforced 
against  thern  in  that  court  by  attachment  as  for  "contempt;  and  the 
fact  that  the  conveyance  was  not  m"ade  in  pursuance  ot  the  order,  does 
not  affect  the  validity  of  the  decree  in  so  far  as  it  determined  the  e.qni- 
table  rights  of  the  parties  in  the  land  in  controversy.    In  our  judgment, 


108  GENERAL  PKOVISIONS.  (Part  1 

the  parties,  and  those  holding  under  them  with  notice,  are  still  bound 
thereby. 

3.  Under  our  code  of  practice,  equitable  as  well  as  legal  defenses 
may  be  set  up  in  an  action  for  the  recovery  of  land.  The  defendant 
in  the  court  below  set  up  this  decree  of  the  circuit  court  of  Kentucky 
as  a  defense  to  the  plaintiffs'  action.  That  it  did  not  constitute  a  good 
defense  at  law  may  be  admitted,  but  we  think,  in  equity,  it  was  a  suffi- 
cient defense. 

The  Constitution  of  the  United  States  declares  that^full  faith _and 
credit  shall  be- giv^n  in  each  state  to  the  recgrds^and  judiciaj,  pro- 
ceedings of  every  other  state,  and  provides  that  Congress_may_ pre- 
scribe the  mode  of  proving  such  records,  and'  proceedings,  and  the 
effect  thereof.  By  Act  May  26,  1790,  c.  11,  1  Stat.  122,  Congress  de- 
clared that  the  "records  and  judicial  proceedings  of  the  state  courts," 
when  properly  authenticated,  "shall  have  the  same  faith  and  credit 
given  to Ihem  in^vefy~couit^ within  the  United  States,  as.  theyjiave. 
by  law  oF  usage,  in  the  courts  of  the  static fromjwhence^hey  are  or 
shalL^  talien.""  When,.^tlierefo,r£U--a^decree_r£njlered  by  a^court  in  a 
sister  state,  having  jurisdiction  of  the  jparties  _and  of  jthe  subject- 
matter,  is  offered~as  evidencCj^  or  pleaded  as  the  foundation  of  a  right, 
in  any  "acHonIm  the  courts  ol  tliis  state,^  it  is  entitled  to  the  same  force 
and  elFect  which  it  had  in  the  state  where  it  was  pronounced.  Mills 
V.  Duryee,  7Xranch  (U.  S.)  481,  3  L.  Ed.  411 ;  Hampton^  McCon- 
nel,  3  Wheat.  (U.  S.)  234,  4  L.  Ed.  378 ;  McGilvray  &  Co.  v.  Avery, 
30  Vt.  538.  That  this  decree  had  the  efifect  in  Kentucky  of  determin- 
ing the  equities  of  the  parties  to  the  land  in  this  state,  we  have  already 
shown ;  hence  the  courts  of  this  state  must  accord  to  it  the  same  ef- 
fect. Tnip_^jlip_x<^iT^t^'-^^^--^^h4^  .<;taTe  the  performanre 
of  that^ecree,  by  compelling  the  conveyance_through  its  process  of 
attachment;  but  when  pleaded_in  our  courts  as  a  cause  of  action,  or 
as  a  ground  of  defense,  it^Hi«st_J)ejxgarded  as  conclusive  of  all  the 
rights  and  ec[uities^jwhicli  were-  ^4judicaled^aiid  settled  theremT unless 
it  be  impeached  for  fraud.  See  cases  supra;  also,  Davis  v.  Headley, 
2r3r7X'Eqm5;  BrowrTv.  Lexington  &  D.  R.  Co.,  13  N.  J.  Eq.  191; 
Dobson  V.  Pearce,  12  N.  Y.  156,  62  Am.  Dec.  152;  Bank  of  United 
States  V.  Merchants'  Bank  of  Baltimore,  7  Gill  (Md.)  415. 

Motion  overruled. 


VA  '        Q^  \  FALL  V.  FALL.* 

.  \}» '  (Supreme  Court  of  Nebraska,  1007.    75  Neb.  120,  113  N.  W.  175.) 

X  In  1876,  E.  W.  Fall  and  Sarah  S.  Fall  were  married  in  Indiana. 

They  afterwards  removed  to  Hamilton  county,  Neb.,   and   lived  in 
Nebraska  until  1889,  when  they  removed  to  the  state  of  Washington. 

♦Affirmed  In  215  U.  S.  1,  30  Sup.  Ct.  3,  54  L.  Ed.  65,  23  L.  R.  A.  (N.  S.> 
924,  17  Ann.  Cas.  S53  (1909). 


Ch.  4)  JUDGMENTS.  109 

In  1879,  while  they  lived  in  Nebraska,  E.  W.  Fall  purchased  160 

acres  of  land  in  Hamilton  county,  the  title  to  the  undivided  one-half 

of  which  is  in  controversy.     In  1887_he  conveyed  the  farm  to  Mrs.  Ku>  ^(^  'f" 

Fall's  brother  as  an  interme3iary7~wBo  7n  turn  reconveyed  to  E.  W.    / -^^  t  x^^^y*^ 

Fall  and  Sarah  S.  Fall,  thereby  vesting  each  with  an  undivided  one-______-----^_____ = 

half  interest  in  the  land.     On  October  5,  1895,  Sarah  obtained  a  di-"  (fX^vf^*^ 
vorce  from  her  husband  in  Washington.^The  courtln  the  decree  of 
divorce  set  apart  and  gave  all  Nebraska  land  to  the  wife  as  her  sole  i    ^Ji/O^^S^  ♦ 

and  separate  property,  and  directed  the  husband  to  convey  the  land  to"^  /       _   « 

the  wife  in  five  days.    This  he  refused  and  neglected  to  do.    The  law    luoJi   k-ii^'^''*-*^ 
of  Washington  requires  parties  desiring  a  divorce  to  bring  into  court  j^^f\/to 

a  list  and  description  of  all  their  property,  and_empowers  jthe_ju_dg.e  Xj*^  ^^^^  ___ — — 
of  the  court,  sitting  as-chaacelior,.  ta  make,  an-eqiiiiable^  division  of  all    l^jjL.    Cyt^^-^  > 
the  property  between  the_ parties..  ~     ^^i  tL*^ 

Dn  May  21,  1895,  E.  W.  Fall  executed  an  indemnity  mortgage  to  ^^  *^ 

his  brother,  the  defendant  W.  H.  Fall,  a  resident  of  Nebraska,  as  de-    ^j-oSJ^^ 


fendants  allege,  to  secure  him  from  loss  by  reason  of  his  having  signed  ^j^    j^  (V«k^^*^*^   • 
a  note  of  $1,000,  as  surety  for  E.  W.  Fall,  in  September,  1893,  for  (5^  j 

money  borrowed  from  his  sister,  Elizabeth  Eastin.  This  mortgage  was  (\p\  \^  v*^^^  \ 
recorded  on  January  10,  1896.  On  July  3,  18^^_wkh^ut  jijQlice_jto_^E.  ^"Y  ^  iJitJf  *^ 
W.  Fall,  the  Washington  CQiirt-appmjQH3lQne^W\„.^  v)^    ^.tsMj%d>^'^ 

sioner  lFoFthe~purposejjvyho  executed  a  deed  of  E.  W^all's  undivided"  lA'*-^  s*"****^ 
half  inter estjn  the  jHaniilton^  county  land  to  Sarah  S.  Fall  This  in- 
strument was  approved  by  the  judge iDf  tTie Superior  courETfiled  in  the 
office  of  its  clerk,  and  afterwards  recorded  in  Hamilton  county.  Neb. 
On  April  37,  1896,  E.  W.  Fall,  who  in  the  meantime  had  become  a 
resident  of  California,  executed  a  warranty  deed  to  Mrs.  Eastin  for 
his  undivided  one-half  interest  in  the  land  in  payment  of  the  same 
debt.  At  the  time  of  the  divorce  and  conveyances  the  land  was  incum- 
bered, and  Fall's  interest  in  it  was  apparently  worth  no  more  than  the 
amount  of  the  debt. 

In  1897  Sarah  S.  Fall  began  an  action  in  the  District  Court  of  Ham- 
ilton County,  Neb.,  to  quiet  her  title  to  the  undivided  one-half  interest 
in  the  land  acquired  by  virtue  of  the  decree  of  the  Washington  court 
and  the  commissioner's  deed  r.nd  to  cancel  the  aforesaid  mortgage  and 
deed  executed  by  E.  W.  Fall  to  the  defendants  W.  H.  Fall  and  Eliza- 
beth Eastin,   alleging  that  the  mortgage  and   deed  were  each  made 

without  consideration  and  for  the  purpose  of  defrauding  her,  and  that  i 

the  mortgage  and  deed  cast  a  cloud  upon  her  title  to  such  land.  Per- 
sonal service  was  had  upon  W.  H.  Fall.  Mrs.  Eastin  appeared  and 
defended  the  action.  E.  W.  Fall  was  served  only  by  publication  and 
did  not  appear.  A  judgment  in  favor  of  plaintiff,  Sarah  S.  Fall,  was 
affirmed  upon  appeal  (75  Neb.  101,  106  N.  W.  412). 

On  rehearing.  ^^ 

i<  The  facts  have  been  abstracted  from  the  opinion  of  the  court. 


110  GENERAL  PROVISIONS.  (Part  1 

Letton,  J.^^  *  *  *  'pi^g  contentions  of  the  appellant  in  sub- 
stance are  that  the  decree  of  the  Washington  court  and  the  deed  ex- 
ecuted by  the  commissioner  of  said  court  to  Mrs.  Sarah  S.  Fall  are 
absolute  nullities  in  so  far  as  they  relate  to  the  land  in  Nebraska ;  that 
Mrs.  Fall  has  no  such  title  or  interest  in  the  undivided  half  interest 
in  the  land  which  had  belonged  to  E.  W.  Fall  that  she  can  maintain 
this  action ;  that,  conceding  that  the  Washington  court  had  the  power 
to  compel  the  execution  of  the  conveyance  by  E.  W.  Fall  while  he 
was  within  its  jurisdiction,  still,  since  its  decree  acted  only  upon  the 
person  and  not  upon  the  land,  and  since  no  action  was  taken  or  com- 
pelled towards  conveying  the  title  to  Mrs.  Fall,  she  never  acquired  any 
ifiterest  in  or  title  to  the  real  estate  in  this  state,  and  the  decree  of 
the  Washington  court  utterly  failed  to  affect  the  land,  or  to  bind  or 
fetter  any  action  taken  by  E.  W.  Fall  after  he  passed  beyond  the 
jurisdiction  of  that  court.  She  further  contends  that  by  the  laws  of 
this  state  the  courts  of  Nebraska  are  not  permitted,  by  a  decree  in  a 
divorce  proceeding,  to  take  the  title  of  real  estate  from  the  husband 
and  vest  it  in  the  wife,  by  way  of  adjusting  the  equities  of  the  parties 
in  the  property  of  the  husband,  and  that  such  a  proceeding  would  be 
in  violation  of  the  law  and  public  policy  of  this  state.  Upon  the  other 
hand,  the  appellee,  Mrs.  Fall,  contends  that  the  decree  of  the  Wash- 
ington court  in  the  proceedings  for  divorce  and  for  a  division  of  the 
property  fixed  the  equities  and  bound  the  conscience  of  the  parties, 
and  created  a  personal  legal  contract  of  record  on  the  part  of  E.  W. 
Fall  to  make  a  conveyance  of  his  interest  in  the  land,  which  he  could 
not  escape  by  going  beyond  the  jurisdiction  of  the  Washington  court, 
and  that  the  decree  is  entitled  to  the  same  faith  and  credit  in  the  courts 
of  this  state  that  it  has  in  the  courts  of  Washington;  that  Mrs.  Fall's 
rights  in  and  to  the  land,  acquired  by  virtue  of  the  decree,  are  sufficient 
to  enable  her  to  maintain  an  action  in  this  state  for  the  purpose  of 
quieting  her  title  to  the  land;  that  the  decree  of  the  Washington  court 
bound  E.  W.  Fall  to  such  an  extent  that  neither  he  nor  his  privies 
could  afterwards  set  up  any  right  or  title  in  the  Nebraska  lands  against 
her;  and  that  Mrs.  Eastin  acquired  no  right,  title,  or  interest  in  the 
land  by  virtue  of  the  deed  from  E.  W.  Fall  or  the  mortgage  to  W.  H. 
Fall,  and  that  the  same  were  fraudulently  made. 
'to  ^  If  the  Washington  court  had  taken  the  value  of  the  Nebraska  land 
j5^I«'    ^        ^^iH^into  consicreratfoiritr  fixing^  the^g^^  parties  and  rende^i  a 

lJ^**f  money   judgment   accordingly,   such   a   judgment   migFt   be   enforced 

'  here,  tmder  the  full  faith  and  credit  ^clause  oftlTe  United  States  Con- 
stitution, since  the  court  7ia]d^ftnr'po^weF~and~jlirisdiction  to  render 
the  same.  Barber  v.  Barber,  21  HowT  (U.~  S.)  5827  16  L.  Ed.  226; 
Trowbndge  v.  Spinning,  23  Wash.  48,  62  Pac.  125,  54  L.  R.  A.  204, 
83  Am.  St.  Rep.  806.     And  this  has  been  the  usual  method  in  such 

ISA  part  of  the  opinion  and  the  dissenting  opinion  of  Sedgwiols,  C.  J.,  have 
been  omitted. 


Ch.  4)  JUDGMENTS.  Ill 

cases.  2  Bishop,  Marriage,  Divorce  &  Separation,  1123.  But  what 
power  had  the  Washington  court  to  affect  the  title  to  the  land  or  to 
confer  equities  therein  by  its  decree?  The  purpose  of  the  statutes  of 
Washington  referred  to  evidently  was  to  give  to  the  courts  of  that 
state  powers  with  reference  to  the  ascertainment  of  the  duties  of  the 
parties  with  reference  to  property,  growing  out  of  the  marriage  rela- 
tion, of  the  same  nature  as  those  which  are  enjoyed  by  courts  gener- 
ally having  jurisdiction  over  divorce,  alimony,  and  the  custody  and 
support  of  children,  but  greater  in  extent  than  those  enjoyed  by  the 
courts  of  some  states.  This  power  was  unknown  to  the  unwritten  law, 
and  when  no  statute  exists  the  courts  do  not  possess  it.  2  Bishop, 
Marriage,  Divorce  &  Separation,  §  1119.  The  power  thus  given  is  to 
be  exercised  in  connection  with  the  proceedings  concerning  the  mar- 
riage status.  Id.  §  826.  It  is  remedial,  and  ancillary  to  the  divorce 
proceedings,  and  not  independent.  In  that  state  the  same  marital  du- 
ties which  are  enforced  here  by  way  of  alimony  may  be  enforced  by 
the  compulsory  division  of  real  estate  belonging  to  either  spouse. 
This  division  of  property  is  not  based  upon  the  view  that  the  innocent 
party  has  an  equitable  interest  in  the  property  itself,  but  upon  the  fact 
that  it  is  the  duty  of  a  husband  to  provide  for,  support,  and  maintain 
his  wife  in  such  manner  as  suits  and  "accords  with  his  pecuniary  cir- 
cumstances and  station  in  life,  so  that  she,  being  innocent,  shall  not 
suffer  from  his  fault.  It  is  of  the  same  nature  as  that  exercised  by 
the  courts  of  Nebraska  in  awarding  permanent  alimony.  In  such  case 
it  is  the  duty  of  the  court  to  consider  the  condition,  situation,  and 
standing  of  the  parties,  financial  and  otherwise,  the  duration  of  the 
marriage,  the  amount  and  valu^  of  the  husband's  estate,  the  source 
from  which  it  came,  and  the  necessity  for  the  support  and  education 
of  children.  It  is  a  method  of  enforcing  the  duty  of  support  and  main- 
tenance. Fischli  V.  Fischli,  1  Blackf.  (Ind.)  360,  12  Am.  Dec.  251; 
Shafer  v.  Shafer,  10  Neb.  468,  6  N.  W.  768;  Cochran  v.  Cochran. 
42  Neb.  612,  60  N.  W.  942 ;  Zimmerman  v.  Zimmerman,  59  Neb.  80, 
80  N.  W.  643 ;   Smith  v.  Smith,  60  Neb.  273,  83  N.  W.  72. 

It  is  well  established  that  a  court  of  chancery  in  a  proper  case  has 
power  to  compel  a  conveyance  of  lands  situated  in  another  country 
or  state,  where  the  persons  of  the  parties  interested  are  within  the 
jurisdiction  of  the  court.  It  is  said  by  Justice  Story:  "The  ground 
of  this  jurisdiction  is  that  courts  of  equity,  have  authority  to  act  upon 
the  person,  '^quitas  agit  in  personam.'  And,  although  they  cannot 
bind  the  land  itself  by  their  decree,  yet  they  can  bind  the  conscience 
of  the  party  in  regard  to  the  land,  and  compel  him  to  perform  his 
agreement  according  to  conscience  and  good  faith."  2  Story,  Eq.  § 
743  ;  3  Pomeroy's  Eq.  Jur.  §  1318.  The  leading  case  upon  this  doctrine 
in  England  is  Penn  v.  Lord  Baltimore,  1  Ves.  444,  in  which  the  Chan- 
cellor of  England  decreed  a  specific  performance  of  a  contract  re- 
specting lands  lying  in  North  America.  This  case  was  followed  in 
Massie  v.  Watts,  6  Cranch   (U.  S.)  148,  3  L.  Ed.  181,  in  a  learned 


(>• 


112  GENERAL  PROVISIONS.  (Part  1 

opinion  by  Chief  Justice  Marshall,  which  examined  and  reviewed  the 
cases  prior  to  Penn  v.  Lord  Baltimore  and  announced  the  rule  as  fol- 
lows: "Upon  the  authority  of  these  cases  and  of  others  which  are 
to  be  found  in  the  books,  as  well  as  upon  general  principles,  this  court 
is  of  opinion  that  in  a  case  of  fraud,  or  trust,  or  of  contract,  the  juris- 
diction of  a  court  of  chancery  is  sustainable  wherever  the  person  be 
found,  although  lands  not  within  the  jurisdiction  of  that  court  may 
be  affected  by  the  decree."  This  case  settled  the  law  upon  this  point, 
and  its  principal  doctrine  has  ever  since  been  recognized  and  enforced 
by  the  courts  of  chancery  in  this  country.  "But,"  says  Judge  Story, 
"still  it  must  be  borne  in  mind  that  the  doctrine  is  not  without  limita- 
tions and  qualifications,  and  that  to  justify  the  exercise  of  the  juris- 
diction in  cases  touching  lands  in  a  foreign  country,  the  relief  sought 
must  be  of  such  a  nature  as  the  court  is  capable  of  administering  in 
the  given  case.  We  have  already  seen  that  a  bill  for  a  partition  of 
lands  in  a  foreign  country  will  not  be  entertained  in  a  court  of  equity, 
upon  the  ground  that  the  relief  sought  cannot  be  given  by  issuing  a 
commission  to  such  foreign  country.  Perhaps  a  more  general  reason 
might  be  given,  founded  upon  the  principles  of  international  law,  and 
''  that  is  that  real  estate  cannot  be  transferred,  or  partitioned,  or  charg- 

ed, except  according  to  the  laws  of  the  country  in  which  it  is  situated." 
^^    2  Story's  Equity,  §  1298. 
^  \i/^**'^  It.  is  conceded  byuthe-appellee  that  th_e_.decree  of  the  Washington, 


/^.       J ^^^  31  J        court  has  no  force  and  effect  on  the  title  to  property  here:    but  it  is 


\  t>  '^^rt.iA''^^    contended^_mainly  upon  the  authority  of   Burnley  v.   Stevenson,   24 

^ /yL  ^r^  Ohio  St.  474,  15  Am.  Rep.  62JL,  that  though  the  decree_of_the_court 

y^0jjji/^       ,      of  Washington  could  not  affectjtl""^  tit^^  ^<^  l^nH  in  thig^^tafp^  yet, 

^^^^^^ J^^  when  this_decree  is  pleaded  in  the  Nebraska  court  as  a  cause_ol  action, 

^\i|A/-^^^  it  must  be  res^arded  as  conclusive  of_al1  the  rights  anri  pgnii-ipc;  which 

f*^^  were  adjudicated  and  settled  in  the  divorce  case.    A  number  of  cases 

have  been  cited  in  which  it  is  said  this  principle  is  upheld ;    but  we 

have  yet  been  unableJ:o  find  a.sjngle^case  in  which  the  direct  question 

at  issue '\vas3Lhether  pr^ot  a  decree  affecting~the  title  to^Teal_est"aIc 

lying  in'another  state-  W-ill  be  recognized  in  tlie_  state  injwhjch  the 

land  lies,  where  no  ccaiveyaac&-has3eeri  jinadfijn^ob^dience,  to  the^de- 

cree,  and  where  the  title  has  bean, conveyed  to  third_Bailjes.    It  is  true 

that  in  Cheever  v.  Wilson,  9  Wall.  (U.  S.)  108,  19  L.  Ed.  604,  and  in 

Dull  V.  Blackman,  169  U.  S.  243,  18  Sup.  Ct.  333,  42  L.  Ed.  733,  there 

are  certain  obiter  expressions  which  are  quoted  in  support  of  such 

doctrine;  but  in  these  cases  this  question  was  not  before  the  court  for 

decision;    in  Cheever  v.  Wilson  an  instrument  having  been  executed 

in  performance  of  the  decree,  and  in  Dull  v.  Blackman  the  case  was 

decided  upon  another  point.     We  think  there  can  be  no  doubt  that, 

where  a  court  of  chancery  has  by  its  decree  ordered  and  directed 

persons  properly  within  its  jurisdiction  to  do  or  refrain  from  doing 

a  certain  act,  it  may  compel  obedience  to  this  decree  by  appropriate 

I  '  proceedings,  and  that  any  action  taken  by  reason  of  such  compulsion 


Ch.  4)  JUDGMENTS.  113 

is  valid  and  effectual  wherever  it  may  be  assailed.  In  the  instant 
case,  if  Fall  had  obeyed  the  order  of  the  Washington  court,  and  made 
a  deed  of  conveyance  to  his  wife  of  the  Nebraska  land,  even  under 
the  threat  of  contempt  proceedings,  or  after  duress  by  imprisonment, 
the  title  thereby  conveyed  to  Mrs.  Fall  would  have  been  of  equal 
weight  and  dignity  with  that  which  he  himself  possessed  at  the  time 
of  the  execution  of  the  deed.  Gilliland  v.  Inabnit,  93  Iowa,  46,  60 
N.  W.  211,  was  a  case  of  this  kind,  where  the  controversy  was  be- 
tween the  plaintiff,  who  was  the  grantee  in  a  conveyance  of  land  in 
Iowa  which  had  been  compelled  by  a  Kentucky  court,  and  the  heirs 
of  her  grantor.  The  Iowa  court  held  that  the  decree  of  the  Kentucky 
court  established  the  trust  and  that  the  conveyance  made  in  conse- 
quence of  such  decree  was  valid  and  effectual  to  convey  the  Iowa  land, 
even  though  made  by  compulsion  and  by  imprisonment  of  the  grantor. 
*     *     * 

The  case  of  Bullock  v.  Bullock  [52  N.  J.  Eq.  561,  30  Atl.  676,  27 
L.  R.  A.  213,  46  Am.  St.  Rep.  528]  deserves  special  examination. 
In  this  case  the  complainant's  husband  had  been  adjudged  by  the  Su- 
preme Court  of  the  state  of  New  York,  in  a  divorce  proceeding  of 
which  it  had  jurisdiction,  to  execute  a  mortgage  upon  lands  in  New- 
Jersey  to  secure  the  payment  of  a  certain  sum  per  month  to  the  com- 
plainant as  alimony.  He  refused  to  do  so,  and  made  other  mortgages 
and  conveyances  of  the  lands,  which  the  wife  alleged  were  fraudu- 
lently made  for  the  purpose  of  defeating  her  rights.  She  charged 
that  she  had  acquired  an  equitable  lien  in  the  lands  by  virtue  of  the 
New  York  decree,  and  prayed  the  court  to  set  aside  the  several  mort- 
gages and  conveyances,  and  that  he  be  decreed  to  execute  and  deliver 
the  mortgage  required  by  the  New  York  court.  It  will  be  seen,  there- 
fore, that  the  case  was  similar  to  the  one  at  bar;  but  it  was  stronger 
in  this  respect:  That  personal  service  was  had  upon  the  respondent 
in  New  Jersey  in  the  action  to  enforce  the  decree,  while  in  this  case 
no  personal  service  has  been  had  upon  E.  W.  Fall.  The  majority  of 
the  court  held  that,  while  the  New  York  court  might  have  enforced 
the  execution  of  the  mortgage  by  the  defendant  while  he  was  within 
its  jurisdiction,  this  not  having  been  done,  the  New  York  decree  could 
not  operate  as  a  cause  of  action  affecting  the  title  to  land  in  New  Jer- 
sey, and  it  is  pointed  out  "that  the  doctrine  that  jurisdiction  respecting 
lands  in  a  foreign  state  is  not  in  rem,  but  one  in  personam,  is  bereft 
of  all  practical  force,  if  the  decree  in  personam  is  conclusive  and  must 
be  enforced  by  the  courts  of  the  situs,"  and  that  such  a  doctrine  would 
result  in  practically  depriving  a  state  of  that  exclusive  control  over 
its  real  estate  which  has  always  been  accorded.  Justice  Garrison  con- 
curred upon  the  ground  that  the  decretal  order  was  only  ancillary  to 
the  divorce  suit,  and  "did  not  possess  any  element  of  a  judgment  upon 
the  issue  submitted  to  the  court  of  decision,  which  was  whether  thcj 
marriage  between  the  parties  should  be  dissolved."  Justice  Van' 
Syckel,  in  a  dissenting  opinion,   said  that  the  New  York  judgment 

LOB.CONF.L. — 8 


114  GENERAL   PROVISIONS.  (Part  1 

was  conclusive  as  to  the  right  of  the  wife  to  have  him  execute  a  mort- 
gage on  the  New  Jersey  land,  and  that,  since  the  courts  of  New  Jer- 
sey would  have  afforded  such  relief  if  the  action  had  been  brought 
in  that  state,  the  judgment  imposed  an  obligation  upon  the  husband, 
which  could  be  enforced  in  New  Jersey  by  the  intervention  of  a  court 
of  equity  there.  In  this  connection,  however,  he  says:  "The  ques- 
tion is  whether  our  court  of  equity  will  establish  a  lien  upon  the  New 
Jersey  land,  so  as  to  give  effect  to  the  New  York  decree.  It  may  be 
conceded  that  the  lex  fori  must  apply  to  the  remedy  to  enforce  the 
New  York  judgment  in  our  courts.  Harker  v.  Brink,  24  N.  J.  Law, 
333;  Garr  v.  Stokes,  16  N.  J.  Law,  404;  Armour  v.  Michael,  36  N.  J. 
Law,  92.  While  we  will  give  full  faith  and  credit  to  the  New  York  judg- 
ment, we  cannot  be  asked  to  give  greater  efficacy  to  a  decree  for  ali- 
mony made  in  New  ^ork  than  we  can  give  to  a  like  decree  made  in 
our  own  courts.  For  instance,  if  the  common  law  prevailed  here,  we 
would  enforce  the  New  York  decree  for  alimony  only  according  to 
the  common-law  practice,  for  that  would  exhaust  our  powers  in  that 
respect.  *  *  *  jt  being  competent  for  our  courts  to  enforce  such 
a  decree  made  in  our  own  courts  by  establishing  it  as  a  lien  on  lands, 
we  cannot  refuse  like  relief  in  this  case  on  the  extraterritorial  judg- 
ment. Huntington  v.  Attrill,  146  U.  S.  657,  13  Sup.  Ct.  224,  36  L. 
Ed.  1123;  McElmoyle  v.  Cohen,  13  Pet.  (U.  S.)  312,  10  L.  Ed.  177." 
It  will  be  seen,  therefore^jtliat_ neither  the  opinion  oj  the  majority 
nor  of  the  minofrtyToT^the  New  Jersey_,j::imrt-in-Bullock  v^  B-uIlgck 
would  warrant  the  granting  of  the  relief  soij^t  in  this  rase^ince  the 
appellee  is  asking  the  court  to  gTveeflFect  to  a  deer  eejofJhe_  Washing- 
ton court.jwhjdTlt  wouIcLJLorreTrfQfce,  "TT  it  had  been_rendered  in  a 
court  .of  tliis_.state^^nd^that,  if^  tlie  view  expressed_by  Justice__Garri- 
son  is  correct,  as  to  whicB  we  expresss  no  opinion,  the  decree_adjudg- 
ing  the  larKpto~T\IrsrFall  is~bnly  of  the~nature  of  a  decretal  order, 
ancillary  to  the  subject-matter  of  the  suit,  which  was  the  matTimonial 
status,  andjs  not  such--a-^'udgment  p^iylfntTfTpd  i-n^-fntt-t^TFh  p^^d  r-r^rlii- 
under  the  Constitution  and  laws  of  the  United  States.  From  a  con- 
sideration of'these"aiithonties,  and  upon  prmciple,  it  seems  clear  that 
a  decree  of  a  court  of  chancery  in  a  foreign  state,  acting  upon  a  per- 
son within  its  jurisdiction  and  directing  him  to  make  a  conveyance 
of  lands  in  this  state,  in  no  wise  affects  the  title  to  the  land.  The  de- 
crce  and  order  acts  only  upon  the  person^  and,  if  obedience  to  iCsrnaiv- 
date  is  recused,  it  can  only  be  enforced  by  the_means  which  have 
from  time  immemorial  been  the  weapons  of  a  court  of  chaac&ry.  To 
say  that  the  decree  binds  the  conscience  of  theparty,  so  that  person;; 
to  whom  he  may  convey  the  land  thereafter  take  no  title,  is  the  s^me 
as  saying  that  tll^— <3fi<^r<^e  affects  the  title.  wliTch  is  beyond  the  power 
of  the  courts  of  another  state  to  do.  _ The  transfer  and  devolution  of 
title  to  real  estate  within  the  limits  of  a  state  is  entirely  subject  to 
tlie  laws  of  that  state,  and  no  interference  with  it  can  be  permitted 
\by  other  states.    Watts  v.  Waddle,  6  Pet.  (U.  S.)  389,  8  L.  Ed.  437; 


Ch.  4)  JUDGMENTS.  115 

Davis  V.  Headley,  22  N.  J.  Eq.  115 ;  Clarke  v.  Clarke,  178  U.  S.  ISG. 
20  Sup.  Ct  873,  44  h.  Ed.  1028;  Wimer  v.  Wimer,  supra;  Bowdle 
V.  Jencks,  18  S.  D.  80,' 99  N.  W.  98;  Manton  v.  J.  F.  Seiberling  &  Co., 
107  Iowa,  534,  78  N.  W.  194.  The  law  will  not  permit  that  to  be  done 
indirectly  which  cannot  be  done  directly,  and,  if  the  courts  of  other 
states  can  so  adjudicate  the  rights  of  parties  to  land  in  this  state  that 
a  title  apparently  clear  upon  the  official  records  could  be  made  null 
and  void  by  its  action  "upon  the  conscience"  of  the  holder  of  the  legal 
title,  the  recording  acts  of  this  state  would  cease  to  afford  protection 
to  purchasers  of  land,  and  thus  the  title  in  fact  be  affected,  and  the 
power  of  the  state  over  the  transfer  and  devolution  of  lands  inter- 
fered with.  If  the  Washington  decree, bound  the  conscience_ojJE^_W. 
Fall,  so  that  when  he  left  the  jujnsdiction  of  that_3tat€-aay-d££d-that 
he  might  make  wQuId_be_absolutelv  void,  and  had  he  sold  the  land  to 
an  innocent  purchaser,  who  had  inspectedjthe  records_andfound  that 
he  was  the  owner  in  fee^oJ[  an  undivided  one-half  intel-est  to  the  prem/" 
ises,  such  purchaser,  though  Lelying_Qn_the  laws  of  thij_state77or^his 
protection,  would  receive  no  title.  This  is  thecontentian  jgf  thejip- 
pellee,  carried  to  its  ultimate  conclusion;  and,  if  this  is  correct,  the 
action  of  th^"Xc5urt  of  another~state  directly  interferes  witlnhe  opera- 
tion  of  the  laWs^oTThls  state  over  lands  \vitHihTts~ sovereignty. 

Under  the  laws  of  this  state  the~cburts"Tiave  no  power  "or  juris- 
diction in  a  divorce  proceeding,  except  as  derived  from  the  statute 
providing  for  such  actions,  and  in  such  an  action  have  no  power  or 
jurisdiction  to  divide  or  apportion  the  real  estate  of  the  parties.  Ny- 
gren  v.  Nygren,  42  Neb.  408,  60  N.  W.  885 ;  Brotherton  v.  Brother- 
ton,  14  Neb.  186,  15  N.  W.  347 ;  Cizek  v.  Cizek,  69  Neb.  800.  96  N. 
W.  657,  99  N.  W.  28;  Aldrich  v.  Steen,  71  Neb.  33,  98  N.  W.  445. 
100  N.  W.  311.  In  the  Cizek  Case,  Cizek  brought  an  action  for  di- 
vorce, and  his  wife  filed  a  cross-bill  and  asked  for  alimony.  The 
court  dismissed  the  husband's  bill,  found  in  favor  of  the  wife,  and  by 
a  stipulation  of  the  parties  set  ofif  to  the  wife  the  homestead  and  or- 
dered her  to  execute  to  the  husband  a  mortgage  thereon,  thus  en- 
deavoring to  make  an  equitable  division  of  the  property.  Afterwards, 
in  a  contest  arising  between  the  parties  as  to  the  right  of  possession 
of  the  property,  the  decree  was  pleaded  as  a  source  of  title  in  the  wife ; 
but  it  was  held  that  that  portion  of  the  decree  which  set  off  the  home- 
stead to  the  wife  was  absolutely  void  and  subject  to  collateral  attack, 
for  the  reason  that  no  jurisdiction  was  given  to  the  district  court  in 
a  divorce  proceeding  to  award  the  husband's  real  estate  to  the  wife 
in  fee  as  alimony.  The  courts  of  this  state  in  divorce  proceedings 
must  look  for  their  authority  to  the  statute,  and  so  far  as  they  attempt 
to  act  in  excess  of  the  powers  therein  granted  their  action  is  void  and 
subject  to  collateral  attack.  A  judgment  or_decree_of  the  nature  of 
the  Washington  decree,  so  faTas  affects  the^l-eaTesJ^te.  if  rendered 
by  the  courts  of  this  state^wnnld  he  void.  Is  it  our  duty  to  give  ef- 
fect to  this  decree  under  the  full  faith  and  credit  clause  of  the  Consti- 


116  GENERAL  PROVISIONS.  (Part   1 

tution  of  the  United  States?  "These  provisions^  of_ the  Constitution 
and  laws  of  the  United  States  are  necessarily  to  be  read  in_the  light 
of  some  established  principles  which,  they  were  not  intended, to  over- 
throw. They  give  no  effect  to  judgments  of  a  cj)urt  which  had  no  ju- 
risdiction of  the  sjibje^ct-matter  or  of  the  partif^s^  *  *  *  ^^^  they 
confer  no  new^urisdiction  on  the  courts  of  any  state.  *  *  *  l£or^ 
do  these  provisions  put  the  judgments  ot  other  states  uponjthe  foot- 
ing of  domestic  judgments  to  be  enforced  byi  executiQn^_hut_tJiey 
leave  the  manner  in  whicTi  they  may  be  enforced  to  the  Ja^?:.  of  the 
state  in  which  they  are"  sue^dTon,  pleaded,  or  offered  in  evidence." 
Huntington  v.  AttrlllTliG  U.~Srdr77r3  Sup.  Ct.  221,  36  L.  Ed.  1123. 
The  provisioiLof  the  Constitution  establishes  a  rule  of  evidence,  r^h- 
er  than  ofjurisdiction^  Weaver^v\~Cressman,  21  Neb.  675,  33  N.  W. 
478;  TTanle^  V.  Donoghue,  116  U.  S.  1,  6  Sup.  Ct.  242,  29  L.  Ed. 
535;  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  8  Sup.  Ct.  1370, 
32  L.  Ed.  239. 

We  know  of  no  rule-which  compek-us^-tQ  give  to  a  decree  of  the 
courts  of  Washington  a  force  and  effect_we  would-denyj|;Q,  a  decree 
of  our  own_courts  upon  the  sarne  ranse  of  artion  We  must  accord 
full  faith  and  credit  to  the  divorce  decree,  since  the  Washington  court 
had  jurisdiction  to  render  it;  but  we  are  not  compelled  to  recognize 
a  decree  affecting  the  title  of  E.  W.  Fall  and  his  grantees,  in  an  ac- 
tion where  he  is  not  in  court  by  personal  service,  and  where  the  act 
directed  by  the  Washington  court  is  in  opposition  to  the  public  policy 
of  this  state  in  relation  to  the  enforcement  of  the  duty  of  marital  sup- 
port. Anglo-American  Provision  Co.  v.  Davis  Provision  Co.,  191 
U.  S.  373,  24  Sup.  Ct.  92,  48  L.  Ed.  225 ;  Wisconsin  v.  Pehcan  Ins. 
Co.,  supra;  Lynde  v.  Eynde,  181  U.  S.  183,  21  Sup.  Ct.  555,  45  L. 
Ed.  810;  McElmoyle  v.  Cohen,  13  Pet.  (U.  S.)  312,  10  L.  Ed.  177; 
Bullock  V.  Bullock,  51  N.  J.  Eq.  444,  27  Atl.  435 ;  Andrews  v.  An- 
drews, 188  U.  S.  14,  23  Sup.  Ct.  237,  47  L.  Ed.  366.  In  order  to^ 
vest  Mrs.  Fall  with  any  right,  title^r  interest  in  and  to  her  husband's" 
land  m  JNebraska  by  virtue_ofjthe~'Washmgton~^cree.~iOzas.  abso^ 
lutely  necessary  "tliaF  the  decree  be  carried^  into  effect  by  that  court 
by  compelling  a  conveyance  from^her^Husband.  Neither  the  decree 
nor  the  coiiTmissioneFs^deed  conferred  any  right  or  title  upon^HerT" 
The  decree  is  inoperative  to  affect  the  title  Fo  the  Nebraska  land,  anT~ 
is  given  no  binding  force  or  effect,  so  far  as  the  courts  of  this  state 
are  concerned,  by  the  provisions  of  the  Constitution  of  the  United 
States  with  reference  to  full  faith  and  credit.  Since  the  decree  upon 
which  the  plaintiff  bases  her  right  to  recover  did  not  aff'ect  the  title 
to  the  land,  it  remained  in  E.  W.  Fall  until  divested  by  operation  of 
law  or  by  his  voluntary  act.  He  has  parted  with  it  to  Elizabeth  Eastin, 
and  whether  any  consideration  was  ever  paid  for  it  or  not  is  imma- 
terial, so  far  as  the  plaintiff  is  concerned,  for  she  is  in  no  position  to 
question  the  transaction,  whatever  a  creditor  of  Fall  might  be  able 
to  do. 


Ch.  4)  JUDGMENTS.  117 

In  whatever  manner  the  result  of  our  conclusion  may  affect  the 
parties  to  this  controversy,  it  is  our  duty  to  sustain  the  rights  of  the 
state  to  sovereignty  over  the  land  within  its  borders,  and  to  resist  an 
attempt  to  convey  and  set  apart  real  estate  in  Nebraska  by  the  court 
of  another  state,  when  not  acting  upon  and  through  the  person  of  the 
owner,  when  under  its  jurisdiction  and  by  virtue  of  the  proper  powers 
of  a  court  of  chancery.  It  appears  that  Mrs.  Fall  has  paid  taxes  and 
interest  and  made  other  outlays  for  the  benefit  of  the  property,  for 
which  she  should  be  reimbursed. 

The  former  judgment  of  this  court  is  vacated,  and  the  cause  re- 
versed, and  remanded  to  the  district  court,  with  directions  to  proceed 
in  accordance  with  this  opinion,  and,  if  plaintiff  so  desires,  to  take  an 
accounting  of  the  rents  and  profits  and  disbursements,  and  to  render 
such  decree  as  may  be  equitable.^" 


FISHER  V.  FIELDING. 

(Supreme  Court  of  Errors  of  Connecticut,  1895.    67  Conn.  91,  34  Atl.  714,  32  L. 
R.  A.  236,  52  Am.  St.  Rep.  270.) 

Action  on  a  judgment  obtained  in  England.  Judgment  for  plaintiffs, 
and  defendant  appeals. 

Baldwin,  J.^'^  *  *  *  Three  special  defenses  were  pleaded,  and, 
on  demurrer,  held  insufficient.  The  second  of  these  set  up  that  the  de- 
fendant was  served  with  the  process  in  the  English  action  wdiile  tran- 
siently stopping  at  an  hotel  in  Birmingham,  and  when  he  was  about 

16  In  a  dissenting  opinion,  SedgwiclJ,  O.  J.,  held:  (1)  That  by  the  law  of 
Nebraslva  a  wife  had  an  equity  in  the  land  of  her  husband  during  coverture, 
alimony  being  determined  by  a  consideration  of  the  amount  which  she  con- 
tributed towards  the  accumulation  of  the  common  property  of  the  family ; 
that  these  equities  were  personal  rights,  and  went  with  their  persons  to  the 
state  of  Washington,  whose  courts,  therefore,  had  jurisdiction  both  of  the  mar- 
riage status  and  of  the  equities  existing  between  the  parties  in  this  land.  (2) 
That  the  method  by  which  the  wife  gets  her  equitable  share  of  the  property — 
whether  by  the  process  of  a  judgment,  lien,  and  sale  (the  method  followed  in 
Nebraska),  or  by  a  direct  determination  by  the  court  of  the  just  and  equitable 
interest  that  each  has  in  the  joint  property  (the  method  pursued  in  Washing- 
ton)— related  merely  to  procedure,  and  that,  the  public  policy  of  a  state  not 
being  interested  in  forms  of  procedure,  the  transfer  of  the  lands  of  the  hus- 
band directly  to  the  wife  in  a  divorce  proceeding  would  not  be  opposed  to  the 
public  policy  of  Nebraska.  (3)  That  defendant,  who  claimed  through  Mr.  Fall, 
had  constructive  notice  of  Mrs.  Fall's  equities  in  the  land,  and  therefore  took 
the  land  subject  to  those  equities. 

As  to  the  jurisdiction  of  courts  of  equity  with  respect  to  foreign  land,  see 
J.  H.  Beale,  Jr.,  "Equitable  Interests  in  Foreign  Property,"  20  Harv.  Law 
Rev.  382-397;  Dicev,  Conflict  of  Laws,  203-207;  Westlake,  Priv.  Int.  Law. 
210-212 ;  Foote.  Priv.  Int.  Jurispr.,  184-197.  See,  also,  G9  L.  R.  A.  673-697 ;  67 
Am.  Dec.  95-105.  As  to  the  nature  of  equity  jurisdiction  in  general,  see  Ames' 
Cases  on  Equity  Jurisdiction,  1-35. 

1 7  Only  so  much  of  the  opinion  is  given  as  relates  to  the  question  of  juris- 
diction. The  dissenting  opinion  of  Hamersley,  J.,  has  been  omitted. 


118  GENERAL  PROVISIONS.  (Part    1 

to  take  his  departure  for  home,  and  that  such  service  was  so  made  and 
timed  for  the  purpose  of  embarrassing  him,  and  obtaining  an  unjust 
and  unfair  advantage,  by  preventing  his  having  a  fair  opportunity  to 
make  his  defense  unless  he  prolonged  his  stay  abroad  indefinitely.  The 
rights  of  sovereignty  extend  to  all  persons  and  things,  not  excepted  hy 
some  special  privilege^J^hat^^rejisaiiLiaJ^^^^ 

An  alien  frfend,  However  transient  his  presence  may  be,  is  entitled  to 
a  temporary  protection,  and  owes  in  return  a  temporary  allegiance. 
Story,  Confl.  Laws,  §§  18,  23,  541;  CarHsle  v.  United  States,  IG^Wall. 
(U.  S.)  147,  154,  21  h.  Ed.  426.  The  fact  that_the_defendanXJY^'^  ^ 
foreigner,  making  but  aj)rief  stay  in  the  country,  and  on  the  point  of 
leaving  it  for  liisown,  did  not  deprive  the  ronrts  nf  Kngland  of_an_ju-- 
risdiction  over  HTm."  The"  Roman  maxim,  "Actor  sequitur  forumTei," 
if  it  has  any  force  in  English  or  American  jurisprudence,  operates  as 
a  permission,  rather  than  a  command.  A  man  who  is  absent  from  his 
domicile  can  still  be  sued  there,  but  he  can  also  be  sued  wherever  he  is. 
found,  if  personally  served  with  legal  process  within  the  jurisdiction 
where  the  plaintiff  seeks  his  remedy.  The  action  must  be  brought, 
indeed,  in  a  court  to  which  the  defendant  is  subject,  and  subject  at  the 
time  of  suit ;  but,  unless  protected  by  treaty  stipulation  or  official  privi- 
lege, he  is  subject  to  every  court  within  reach  of  whose  process  he  may 
enter.  The  Roman  law  allowed  a  nonresident  to  be  sued  where  he 
had  established  a  temporary  seat  of  business,  and,  in  some  cases,  where 
he  had  simply  contracted  a  single  obligation.  Dig.  V,  1,  "De  judiciis, 
et  ubi  quisque  agere  vel  conveniri  debeat,"  2,  19,  24.  The  conimon 
law,  so  far  as_coticerns_the_  enforcement  of  a  pecuniary_Jiahilii^j:,_go£S 

farther,  and^_r>£Prafp<;  alikp^npon  eygry  privatp  inHivirlnnI  who  may  be 

found,  however  transiently,  within  the  te^rritory  where  it  is  in  force. 
Whart.  Confi.  Laws7§  G53.  An  English  court  will  take  cognizance  of 
an  action  on  a  contract,  wherever  made,  and  between  whatever  par- 
ties. Holland,  Jur.  (5th  Ed.)  349.  So  the  courts  of  this  state  have  always 
regarded  transitory  actions  as  following  the  person,  and  entertained 
them  against  foreigners  found  within  our  jurisdiction,  whether  brought 
by  a  foreigner  or  a  citizen.  Place  v.  Lyon,  Kirby  (Conn.)  404,  406; 
Potter  V.  Allin,  2  Root  (Conn.)  G3,  66,  67.  "Territorial  jurisdiction  at- 
taches (with  special  exceptions)  upon  all  persons  either  permanently 
or  temporarily  resident  within  the  territory  while  they  are  within  it; 
but  it  does  not  follow  them  after  they  have  withdrawn  from  it,  and 
when  they  are  living  in  another,  independent  country."  Sirdar  Gurd- 
yal,  Singh  v.  Rajah  of  Earidkote,  [1894]  App.  Cas.  670,  683.  The  sev- 
eral states  of  the  United  States  are,  as  respects  their  relations  toeacli 
(jther,  excepting  only"suc1r(3f  these  as  are  regulated  by  the  Constitution 
of  the  United  States,  indepenJen-Tand  foreign  sovereignties.  Buckner 
V.  Einley,  2  Pet.  (U.  S.)  586,  590,  7  L.  Ed.  528 ;  Pennoycr  v.  Neff,  95  U. 
S.  714,  722,  24  L.  Ed.  565.  The  efifec^in  one^f  them  of  a  suit  j3rought 
or  judgment  rendered  in  another  is  precTsefy  the  same^s'iT the~!atter~ 


Ch.   4)  JUDGMENTS.  119 

were  a  foreign  country,  except  so  far  as  article  4,  §  1.  of  the  Constitu- 
tion Qf~riie  United_States  may  have  estabhshed  a  d'.flerent  rule!  Hatcli 
V.  Spofford,  22  Conn.  485,  498^  58  Am.  Dec.  4SS  ;  M'KlmovIe  v.  Cohen, 
13  Pet.  (U.  S.)  312,  324,  10  L.  Ed.  177;  Thompson  v.  Whitman,  18 
Wall.  (U.  S.)  457,  461,  21  L.  Ed.  897.  Notwithstanding  that  jprovision 
of  the  Constitution,  and  the  statute  passed  to  enforce  it  (Rev.  St7  U.  S. 
§  905),  the  jurisdrction  of  a  state  ccrnTt  whose  judgment  is  brought 
in  question  in  another  state  is  ahvays~open  to  inquiry;-.  In  that  respect, 
every  slate  court  is  to  be  regarded  as  a  foreign  court.  Hall  vTXan- 
ning,  91  tTrS:TI)0,Tljor^"X".  Ed.  271 ;  Grover  &  Bakei-  Sewing  Mach. 
Co.  V.  Radcliffe,  137  U.  S.  287,  294,  298,  11  Sup.  Ct.  92,  34  L.  Ed.  670. 

The  courts  of  this  state  have  never  before  had  occasion  to  pass  di- 
rectly upon  the  defenses  which  may  be  open  here  to  an  action  upon  a 
judgment  of  a  court  of  a  foreign  country,  but  they  have  often  been 
called  to  consider  the  effect  of  legal  proceedings  instituted  in  one  of 
the  United  States  against  a  citizen  of  another;  and  the  right  to  seen re, 
jurisdiction  ovpr^__nnprpqidpni-,  ^^Thn  i«;  gpryfd  with  process  while  tran- 
siently  in  THe~s"tate,  has  beeti  utiifomily  upheld.  Hart  v.  Granger,  1 
Conn.  ISC  165,  173 ;  Wood  v.  Watkinson,  17  Conn.  500,  504,  44  Am. 
Dec.  562 ;  Hatch  v.  Spofford,  22  Conn.  485,  58  Am.  Dec.  433 ;  Bishop 
V.  Vose,  27  Conn.  1,  11,  12;  Duryee  v.  Hale,  31  Conn.  217,  223;  East- 
erly V.  Goodwin,  35  Conn.  273,  278 ;  O'SuIlivan  v.  Overton,  56  Conn. 
102,  103,  14  Atl.  300.  These  decisions  are  based  on  what  has  been 
deemed  an  accepted  principle  of  international  law,  applicable  between 
the  states,  on  no  other  ground  than  that  they  are,  as  to  such  a  question, 
in  the  position  of  foreign  nations  to  each  other.  Grover  &  Baker  Sew- 
ing Mach.  Co.  V.  Radcliffe,  137  U.  S.  287,  298,  11  Sup.  Ct.  92,  34  L. 
Ed.  670 ;  Lazier  v.  Westcott,  26  N.  Y.  146,  154,  82  Am.  Dec.  404. 

The  English  court  having,  then,  jurisdiction  of  the  parties,  and  pre- 
sumably of  the  action  and  the  subject-matter,  as  to  which  no  question 
has  been  made,  there  is  nothing  in  the  defense  now  pleaded,  that  the 
suit  was  brought,  as  it  was  and  when  it  was,  "for  the  purpose  of  em- 
barrassing and  impeding  the  defendant,  and  to  prevent  his  having  a 
fair  opportunity  to  defend  said  suit  unless  he  prolonged  his  stay  in- 
definitely at  said  Birmingham,  and  thereby  said  plaintiff  sought  to  ob- 
tain an  unjust  and  unfair  advantage  over  said  defendant."  Where_ 
there  is  a  legal_iight-to  do  a  ccH?''^\rt,  thf  motive  which  inducej,>tJ%€ 
exercise  of  jh£,-r4ght-t»-e£-Jio  importance.  McCune  v.  Norwich  City 
Gas  Co.,  30  Conn.  521,  524,  79  Am.  Dec.  278 ;  Occum  Co.  v.  A.  &  W. 
Sprague  Mfg.  Co.,  34  Conn.  529,  540.  "Nullus  videtur  dolo  facere, 
qui  suo  jure  utitur."  The_a£t  complained  ofJqpAnng-  heprL-fiiny-g<"^<^'"d, 
and  being  one  which  the  law  permitted,  whatever  advantage  it  gave 
the  praiiitiffs  could  be  neFfhgi  unjust  iiOT"unTaiF,  and  these  epithets  are 
therefore  oTno^effect  Micldletown  v.  Boston  &  N.  Y.  A.  L.  R.  Co., 
53  ComrTJoi,  359,lr  x\tl.  706.  They  had  the  right  to  sue  the  defendant 
where  they  found  him,  or  at  his  domicile  in  Connecticut,  and,  in  the 


120  GENERAL  PROVISIONS.  (Part    1 

choice  of  the  forum,  were  free  to  consult  their  own  convenience,  with- 
out regard  to  any  loss  he  might  sustain  from  "the  law's  delays."    Lovell 
V.  Hammond  Co.,  66  Conn.  500,  512,  34  Atl.  511.     *     *     * 
There  is  no  error  in  the  judgment  appealed  from.^^ 


FEYERICK  V.  HUBBARD. 

(King's  Bench  Division,  1902.    71  L.  J.  K.  B.  509.) 

WAI.TON,  J.  ^^  In  this  case  the  plaintiffs  sue  the  defendant  for  £1,- 
208.  19s.  Id.,  money  alleged  to  be  due  from  the  defendant  to  the  pk'-:- 
tiffs  under  a  final  judgment  of  the  Tribunal  of  Commerce  of  Ghent, 
in  the- kingdom  of  Belgium,  bearing  date  November  15,  1900.  The 
question  is  whether  this  judgment  is  binding  on  the  defendant.  The 
defendant  is  not  a  Belgian  subject — neither  domiciled  nor  resident  in 
Belgium;  nor  has  he  been  served  with  process  in  Belgium;  but  it 
was  proved  that  judgment  was  delivered  by  the  Belgian  court — a  final 
judgment — and  that  all  the  requisites  of  Belgian  law  had  been  duly  com- 
plied with.  It  is  therefore  a  regular  judgment  duly  obtained.  The 
question  is  whether  it  is  binding  on  the  defendant. 

The  ground  on  which  it  is  said  to  be  binding  is  that  by  clause  11  of 
the  contract  made  between  the  plaintiffs  and  the  defendant  all  dis- 
putes between  the  parties  were  to  be  referred  to  the  Belgian  jurisdic- 
tion.^ This  contract  is  dated  September  7,  1895,  and  appears  to  have 
been  executed  by  the  defendant  at  Ghent  on  that  date.  It  is  said  that, 
as  by  the  terms  of  that  contract,  for  breach  of  which  the  plaintiffs  seek 
to  recover  the  damages  awarded  by  the  Belgian  court,  the  defendant 
agreed  to  submit  to  the  Belgian  jurisdiction,  therefore  he  is  bound  by 
the  decision  of  the  Belgian  court. 

There  is  no  authority  directly  in  point — that  is  to  say,  it  has  never  been 
decided  in  any  case  that  where  a  contract,  on  which  a  cause  of  action 
and  proceedings  thereon  arise,  submits  all  disputes  to  the  jurisdiction 
of  a  foreign  tribunal,  that  fact  alone  is  sufficient  to  render  the  foreign 
judgment  binding.  But  in  the  case  of  Rousillon  v.  Rousillon  [1880] 
49  L.  J.  Ch.  338,'  at  page  344,  14  Ch.  D.  351,  at  page  371,  Mr.  Justice 
Fry  reviewed  all  the  cases  on  this  subject,  and  stated  his  conclusions. 
After  citing  the  case  of  Schibsby  v.  Westenholz  [1870],  40  L.  J.  Q. 
B.  73,  L.  R.  6  Q.  B.  155,  he  continues  thus:  "What  are  the  circum- 
stances which  have  been  held  to  impose  upon  the  defendant  the  duty 
of  obeying  the  decision  of  a  foreign  court?  Having  regard  to  that 
case,  and  to  Copin  v.  Adamson,  43  L.  J.  Ex.  161,  L.  R.  9  Ex.  345,  they 

1 8  Service  in  another  state  from  the  one  in  vphich  the  remedy  is  sought  does 
not  confer  personal  jurisdiction.  Banli  of  Horton  v.  Knox,  133  Iowa,  443,  lOU 
N.  W.  201  (1006).  As  to  jurisdiction  of  English  courts,  see  Dicey,  Conflict  of 
Laws,  217-249. 

19  The  opinion  only  is  given. 


Ch.    4)  JUDGMENTS.  121 

may,  I  think,  be  stated  thus.  The  courts  of  this  country  consider  the 
defendant  bound  where  he  is  a  subject  of  the  foreign  country  in  which 
the  judgment  has  been  obtained;  where  he  was  resident  in  the  foreign 
country  when  the  action  began  ;  where  the  defendant  in  the  character  of 
plaintiff  has  selected  the  forum  in  which  he  is  afterwards  sued ;  where 
he  has  voluntarily  appeared ;  where  he  has  contracted  to  submit  him- 
self to  the  forum  in  which  the  judgment  was  obtained,  and,  possibly, 
if  Becquet  v.  MacCarthy  [1831]  2  B.  &  Ad.  951,  be  right,  where  the 
defendant  has  real  estate  within  the  foreign  jurisdiction,  in  respect  of 
which  the  cause  of  action  arose  whilst  he  was  within  that  jurisdiction." 
That  is  a  classification  by  Mr.  Justice  Fry  of  the  cases  where  a  party 
is  bound  by  the  judgment  of  a  foreign  court,  and  one  of  those  cases 
is  "where  he  has  contracted  to  submit  himself  to  the  forum  in  which 
the  judgment  was  obtained."  If  so,  the  plaintiffs  are  entitled  to  judg- 
ment in  this  case.  It  was  not  absolutely  necessary  for  Mr.  Justice 
Fry  to  decide  this  point  in  Rousillon  v.  Rousillon,  49  L.  J.  Ch.  338, 
at  page  344,  14  Ch.  D.  351,  at  page  371.  In  support  of  his  opinion  he 
refers  to  Copin  v.  Adamson,  43  L.  J.  Ex.  161,  L.  R.  9  Ex.  345.  That 
was  an  action  on  a  judgment  of  the  Court  of  the  Tribunal  of  Com- 
merce in  the  Department  of  the  Seine.  The  defendant  pleaded  that 
he  was  not  at  any  time  before  the  judgment  resident  or  domiciled  in 
France  or  within  the  jurisdiction  of  the  court,  or  subject  to  French 
law ;  that  he  was  never  served  with  any  process  or  summons,  and  had 
no  notice  or  knowledge  of  any  process  or  summons  nor  any  opportunity 
of  defending  himself.  To  this  plea  the  plaintiff  replied  that  the  de- 
fendant was  the  holder  of  shares  in  a  French  company  having  its 
place  of  business  and  legal  domicile  in  Paris,  in  the  department  of  the 
Seine,  and  within  the  jurisdiction  of  the  Court  of  the  Tribunal  of 
Commerce  of  that  department,  and  thereby  was  by  the  law  of  France 
subject  to  all  the  liabilities,  rights,  and  privileges  belonging  to  the  hold- 
ers of  shares  in  the  company,  and  in  particular  to  the  regulations,  con- 
ditions, and  stipulations  contained  in  the  statutes  and  articles  of  as- 
sociation by  which  it  was  provided  and  agreed  that  all  disputes  which 
might  arise  during  the  liquidation  of  the  company  between  the  share- 
holders and  the  company  with  respect  to  the  affairs  of  the  company, 
should  be  submitted  to  the  jurisdiction  of  the  competent  tribunal  of  the 
department  of  the  Seine,  and  that  every  shareholder  who  should  pro- 
voke a  contest  must  elect  a  domicile  at  Paris,  and  that,  in  default  of 
election,  election  should  be  made  of  full  right  at  the  office  of  the  Im- 
perial procurator  of  the  civil  tribunal  of  the  department  in  which  the 
office  of  the  company  was  situate,  and  that  all  summonses,  or  notices 
of  process,  should  be  validly  and  effectually  served  at  the  domicile 
formally  or  impliedly  chosen ;  that  the  company  was  declared  bankrupt, 
and  the  defendant  provoked  a  contest  within  the  meaning  of  the  stat- 
utes or  articles;  that,  the  defendant  not  having  elected  a  domicile,  the 
office  of  the  procurator  of  the  civil  tribunal  of  the  department  of  the 
Seine  became  his  domicile,  where  all  process  was  duly  served. 


122  GENERAL  PROVISIONS.  (Part  1 

It  was  held  by  the  Court  of  Exchequer,  consisting  of  Chief  Baron 
Kelly,  Baron  Amphlett,  and  Baron  Pigott,  that  that  replication  was 
good.  Baron  Amphlett,  delivering  the  judgment  of  himself  and  Baron 
Pigott,  said :  "I  apprehend  that  a  man  may  contract  with  others  that 
his  rights  shall  be  determined  not  only  by  foreign  law,  but  by  a  for- 
eign tribunal,  and  thus  by  reason  of  his  contract,  and  not  of  any  al- 
legiance absolute  or  qualified,  would  become  bound  by  that  tribunal's 
decision."  The  facts  in  Copin  v.  Adamson,  43  L.  J.  Ex.  161,  L.  R.  9 
Ex.  345,  might  be  distinguished  from  those  in  this  case,  and  the  deci- 
sion might,  I  think,  have  been  put  on  other  grounds ;  but  it  was  in 
fact  put  upon  the  ground  that  a  man  may  contract  with  another  that 
his  rights  shall  be  decided  by  a  foreign  tribunal.  That  case  was  af- 
firmed in  the  Court  of  Appeal  [1875],  45  L.  J.  Ex.  15,  1  Ex.  D.  17, 
where  Lord  Cairns,  in  giving  judgment,  said:  "The  Court  of  Excheq- 
uer have  held  that  a  good  replication.  I  am  clearly  of  the  same  opinion. 
It  appears  to  me  that,  to  all  intents  and  purposes,  it  is  as  if  there  had 
been  an  actual  and  absolute  agreement  by  the  defendant." 

Therefore  Copin  v.  Adamson,  43  L.  J.  Ex.  161,  L.  R.  9  Ex.  345,  is 
practically  a  decision  that  a  defendant  in  an  action  on  a  foreign  judg- 
ment agreeing  to  be  bound  by  the  judgment  of  the  foreign  court  is 
bound  by  that  judgment  although  not  resident,  served,  or  domiciled 
within  the  juri-sdiction  of  the  foreign  court.  If  so,  the  opinion  of  Mr. 
Justice  Fry  in  Rousillon  v.  Rousillon,  49  L.  J.  Ch.  338,  at  page  344,  14 
Ch.  D.  351,  at  page  371,  is  well  founded,  and  I  am  bound  by  it.  Here 
the  defendant  agreed  that  he  would  refer  all  disputes  to  the  Belgian 
jurisdiction — that  is,  that  he  would  be  bound  by  the  decision  of  the 
Belgian  tribunal — and  if  the  cases  cited  above  were  rightly  decided,  the 
judgment  in  Belgium  is  binding  on  the  defendant.  I  see  nothing  in  the 
Belgian  proceedings  contrary  to  natural  justice.  There  must  therefore 
be  judgment  for  the  plaintiffs. 

Judgment  accordingly. 


EMANUEL  v.  SYMON. 

(Court  of  Appeal,  1908.    77  L.  J.  K.  B.  ISO,  1  K.  B.  302.) 

Appeal  by  the  defendant  from  the  judgment  of  Channell,  J.,  in  an 
action  tried  without  a  jury. 

The  plaintiffs  sought  to  recover  from  the  defendant  the  sum  of  £1,281. 
4s.  lid.  on  a  judgment  obtained  in  the  Supreme  Court  of  Western  Au- 
stralia on  July  25,  1902,  or,  in  the  alternative,  on  accounts  taken  on  the 
dissolution  of  a  partnership. 

In  1895  the  defendant  verbally  entered  into  partnership  with  certain 
persons  (who  at  the  time  the  action  was  brought  in  Western  Australia 
were  represented  by  the  plaintiffs) — all  the  parties  being  then  resident 
in  Western  Australia — to  work  a  gold  mine  situated  in  that  colony,  each 


Ch.    4)  JUDGMENTS.  123 

of  the  partners  having  an  equal  share.  According  to  the  plaintiffs  the 
partnership  was  in  existence  in  1901,  when,  it  being  seen  that  the  ad- 
venture was  not  successful,  it  was  decided  that  steps  should  be  taken 
for  a  dissolution  and  an  account.  For  this  purpose  a  suit  was  com- 
menced in  the  colony  in  1901.  At  that  time  the  defendant  did  not  car- 
ry on  business  or  reside  in  Western  xA.ustralia,  having  left  the  colony  in 
1899  and  taken  up  his  residence  in  England.  The  writ  in  the  Western 
Australian  action  was  served  on  the  defendant  in  England  on  Novem- 
ber 13,  1901,  and  thereafter  he  was  from  time  to  time  kept  informed 
of  the  proceedings ;  but  he  did  not  enter  an  appearance  in  that  action 
or  take  any  part  therein.  In  the  action  a  decree  was  made  dissolving 
the  partnership  as  from  July  25,  1902,  and  ordering  a  sale  of  the  mine. 
Under  the  decree  .accounts  were  taken  which  shewed  a  deficiency,  after 
crediting  the  partnership  with  the  sale  of  the  mine,  of  £7,867.  9s.  9d.,  to 
be  met  by  the  partners.  Of  that  amount  the  defendant's  one-sixth  share 
was  £1,281.  4s.  lid.,  the  amount  sued  for.      ^ 

By  his  defence  the  defendant  alleged  that  at  all  material  times  he  was 
a  British  subject  domiciled  in  England;  that  neither  at  the  date  of  the 
commencement  of  the  suit  in  Western  Australia  nor  at  any  time  during 
its  continuance  was  he  resident  or  domiciled  in  that  colony  or  subject 
to  the  jurisdiction  of  its  courts;  that  he  did  not  appear  to  the  writ  in 
that  action  or  agree  to  submit  to  the  jurisdiction  of  the  colonial  court, 
and  that  the  decree  of  that  court  was  consequently  not  binding  upon 
him. 

In  his  evidence  the  defendant  stated  that  the  partnership  was  dissolv- 
ed in  1896 ;  but  upon  the  whole  of  the  evidence  Channell,  J.,  came  to 
the  conclusion  that  the  dissolution  did  not  take  place  in  that  year,  and 
that  the  partnership  continued  until  at  least  1899,  in  which  year  two  of 
the  partners  assigned  their  shares  in  the  partnership  to  one  of  the  other 
partners,  who  died  in  1901,  in  which  year  the  plaintiffs  and,  as  they  al- 
leged, the  defendant  were  the  members  of  the  partnership. 

Channell,  J.,  held  that  the  defendant,  by  joining  the  partnership  for 
working  the  mine  in  Western  Australia,  had  impliedly  agreed  that  part- 
nership disputes,  whether  arising  during  the  continuance  or  oA  the  ter- 
mination of  the  partnership,  should  be  settled  in  the  courts  of  Western 
Australia,  and  that,  having  submitted  to  their  jurisdiction,  he  was  bound 
by  the  judgment. 

The  defendant  appealed. 

Lord  Ai^VERSTONE,  C.  J.^"  In  this  case  I  am  unable  to  agree  with  the 
decision  to  which  my  Brother  Channell  has  come.  Out  of  respect  to  his 
very  great  learning  and  the  weight  of  his  opinion,  I  should  have  wished 
to  have  taken  time  to  consider  my  judgment  if  I  had  felt  that  further 
consideration  would  have  enabled  me  to  understand  the  authorities  bet- 
ter than  I  understand  them  now.    But,  having  regard  to  the  fact  that 


2  0  The  concurring  opinions  of  Bucldey  and  Kennedy,  L.  J  J.,  Iiave  been  omit- 
ted. 


124  GENERAL  PROVISIONS.  (Part    1 

the  point  is  one  which  has  been  the  subject  of  a  great  deal  of  discussion 
in  the  courts  for  a  very  considerable  time,  I  think  we  should  give  our 
judgment  at  once. 

My  Brother  Channell  based  his  judgment  upon  this  proposition: 
"The  defendant,  by  joining  this  partnership  for  the  working  of  the  mine 
in  Western  Australia,  must,  I  think,  be  taken  to  have  contracted  that 
all  partnership  disputes,  if  any,  should  be  determined  by  the  courts  of 
that  country,  and  thereby  subjected  himself  to  the  jurisdiction  of  those 
courts,  just  as  in  Copin  v.  Adamson,  43  L.  J.  Ex.  161,  h.  R.  9  Ex.  345, 
it  was  held  that  a  man  who  took  shares  in  a  French  company  and  ex- 
pressly agreed  that  disputes  as  to  shares  should  be  settled  in  the  man- 
ner provided  by  the  company's  articles,  that  is,  in  the  courts  of  France, 
so  subjected  himself."  If  that  proposition,  which  is  the  root  of  the 
judgment,  is  right,  this  judgment  should  be  affirmed;  but  in  my  opin- 
ion it  goes  a  great  deal  too  far.  I  think  it  goes  further  than  is  con- 
sistent with,  if  not  the  direct  decision,  at  any  rate  the  considered  opin- 
ions of  very  eminent  judges  in  courts  which  are  either  binding  upon  us 
or  of  such  high  authority  that  we  ought  not  to  adopt  that  proposition 
in  its  breadth  unless  we  are  able  to  distinguish  those  opinions.  The 
proposition  was  supported  upon  two  grounds :  The  first  that  the  de- 
fendant had  become  the  owner  of  real  property  in  Western  Australia ; 
the  second  that  he  had  entered  into  a  partnership,  which  partnership 
was  to  manage  that  property,  and  to  deal  with  it  as  real  estate.  Coun- 
sel for  the  plaintiffs  has  based  his  argument  mainly  on  the  second 
ground.  Now  it  cannot  be  disputed  that  the  ownership  of  property  in 
a  country  gives  certain  rights  and  involves  submission  to  the  jurisdic- 
tion of  that  country  to  a  certain  extent.  That  was  decided  in  the  case 
of  Douglas  V.  Forrest,  6  L.  J.  (O.  S.)  C.  P.  157,  164,  4  Bing.  686,  703, 
and  the  principle  was  recognized  by  the  House  of  Lords  in  the  case  of 
London  &  North- Western  Railway  v.  Lindsay  [1858]  3  Macq.  H.  L. 
99.  Therefore  it  is  clear  that  foreign  courts  have  jurisdiction  to  deal 
with  the  property  and  the  rights  of  the  person  in  the  property  itself,  but 
that  jurisdiction  is  limited.  It  by  no  means  follows  that  there  is  juris- 
diction for  all  purposes.  It  has  been,  however,  suggested,  and  I  think 
with  some  warrant  of  authority,  that  Becquet  v.  MacCarthy,  2  B.  &  Ad. 
951,  was  a  case  in  which  the  jurisdiction  proceeded  on  the  basis  of  the 
ownership  of  property.  But  Mr.  Dicey  in  his  book  on  Conflict  of  Laws 
has  indicated  in  a  note  on  page  373  that  it  is  very  doubtful  whether  that 
case  properly  understood  rested  on  the  ownership  of  property :  wheth- 
er it  did  not  rest  on  the  fact  that  the  defendant  there  was  the  holder  of 
an  office.  I  will  only  refer  to  the  case  of  Sirdar  Gurdyal  Singh  v.  Ra- 
jah of  Faridkote,  [1894]  A.  C.  670,  where  Lord  Selborne  in  a  passage 
at  page  685,  to  my  mind,  disposed  once  and  for  all  of  the  contention 
that  Becquet  v.  MacCarthy,  2  B.  &  Ad.  951,  can  be  relied  upon  as  being 
an  authority  laying  down  the  proposition  that  the  mere  possession  of 
property  is  sufficient  to  give  a  general  jurisdiction  in  the  foreign  court. 
Certainly  it  seems  to  me,  having  regard  to  the  way  in  which  Becquet  v. 


Ch.   4)  JUDGMENTS.  125 

MacCarthy,  2  B.  &  Ad.  951,  has  been  treated,  that  it  can  only  be  reg^ard- 
ed  as  an  authority  if  it  is  based  on  the  principle  which  Lord  Selborne 
pointed  out  in  the  passage  to  which  I  hav.e  just  referred. 

The  second  ground  upon  which,  as  I  have  said,  counsel  for  the  plain- 
tiff mainly  based  his  case  was  that  there  was  a  contract  of  partnership 
entered  into  between  these  people  in  Western  Australia,  and  that  it 
must  be  inferred  from  that  contract  of  partnership  that  they  had  agreed 
that  all  disputes  with  regard  to  that  partnership  should  be  finally  deter- 
mined in  the  Western  Australian  courts.  He  went  so  far  as  to  contend 
that,  even  if  the  defendant  had  immediately  left  Western  Australia  and 
had  never  been  there  again,  everything  connected  with  the  partnership, 
of  flowing  from  it,  must  be  subject  to  the  jurisdiction  of  the  Austra- 
lian courts.  I  do  not  wish  to  enlarge  on  the  consequences  of  such  a 
proposition,  but  it  is  necessary  for  him  to  contend  that  the  mere  fact  of 
entering  into  the  partnership  in  Western  Australia  in  the  year  1896,  re- 
maining there  until  1899,  was  sufficient  to  give  the  court  jurisdiction 
against  this  particular  defendant.  The  writ  was  not  issued  until  Novem- 
ber 13,  1901.  Now,  if  the  case  is  based  upon  the  contract  of  partner- 
ship— the  contractual  obligations  which  the  defendant  has  entered  into 
— in  my  opinion  the  point  is  covered  by  authority  or  opinion  of  such 
great  weight  that  we  ought  not  to  disregard  it.  In  the  case  of  Schibsby 
v.  Westenholz,  40  L.  J.  Q.  B.  73,  L.  R.  6  Q.  B.  155,  163,  Mr.  Justice 
Blackburn  had  said  in  the  course  of  his  judgment:  "If  at  the  time 
when  the  obligation  was  contracted  the  defendants  were  within  the  for- 
eign country,  but  left  it  before  the  suit  was  instituted,  we  should  be  in- 
clined to  think  the  laws  of  that  country  bound  them;  though  before 
finally  deciding  this  we  should  like  to  hear  the  question  argued."  That 
passage  is  commented  upon  by  Lord  Selborne  in  Sirdar  Gurdyal  Singh 
v.  Rajah  of  Faridkote  [1894]  A.  C.  670,  in  the  following  passage, 
where  he  says :  "The  learned  judge  had  not  to  consider  whether  it  was 
a  legitimate  consequence  from  this,  that  they  would  be  bound  to  sub- 
mit, on  the  footing  of  contract  or  otherwise,  to  any  assumption  of  juris- 
diction over  them  in  respect  of  such  a  contract,  by  the  tribunals  of  the 
country  in  which  the  contract  was  made,  at  any  subsequent  time,  al- 
though they  might  be  foreigners  resident  abroad."  Then  he  proceeds 
to  express  his  opinion  that  such  an  obligation  could  not  be  implied. 
Speaking  for  myself,  I  think  it  is  far  too  wide  a  proposition  that,  simply 
because  there  is  a  contract  of  partnership,  or  a  contract  of  any  other 
kind,  made  in  a  foreign  country,  it  of  necessity  follows  that  all  the  con- 
tracting parties  have  submitted  to  the  jurisdiction  of  the  foreign  trib- 
unal for  all  purposes  in  respect  of  any  question  arising  out  of  the  con- 
tract or  otherwise.  The  question  was,  to  a  certain  extent,  dealt  with, 
although  not  directly,  in  the  case  of  Copin  v.  Adamson,  43  L.  J.  Ex. 
161,  L.  R.  9  Ex.  345.  In  that  case  the  judgment  of  the  Court  of  Ex- 
chequer, and  of  the  Exchequer  Chamber,  was  in  favor  of  the  plaintiffs, 
on  the  ground  that  there  was  a  contract  by  the  then  defendant  whereby 
he  had  agreed  to  be  bound  in  terms  by  the  decision  of  the  foreign  trib- 


126  GENERAL  PROVISIONS.  (Part  1 

una].  Lord  Cairns,  when  the  point  was  raised  in  the  Exchequer  Cham- 
ber, decided  the  case  entirely  upon  that  point.  The  plaintiffs  had  also 
raised  a  second  point,  which  was  one  very  like  the  point  urged  in  this 
case  on  behalf  of  the  plaintiffs — namely,  that  the  defendant,  by  becom- 
ing a  shareholder,  had  submitted  to  the  jurisdiction  of  the  French 
courts.  Baron  Amphlett,  in  giving  the  judgment  of  himself  and  Baron 
Pigott  in  that  casej  said :  "I  now  proceed  to  consider  the  second  rep- 
lication, which  is  silent  as  to  the  statutes  or  articles  of  association,  but 
simply  alleges  that  according  to  French  law  the  members  of  the  com- 
pany were  bound  to  .elect  a  domicile ;  and  that,  according  to  French 
law,  upon  default  a  domicile  would  be  elected  for  them  at  a  public  office, 
where  process  might  be  served,  and  that  they  would  be  bound  thereby. 
I  confess  I  cannot  find  a  case  which  has  gone  so  far  as  to  hold  a  de- 
fendant liable,  under  such  circumstances,  upon  a  foreign  judgment  ob- 
tained as  this  was,  without  any  knowledge  on  his  part  of  the  proceed- 
ings. Can  it  be  said  that  an  Englishman,  for  example,  who  buys  a 
share  in  a  foreign  company  on  the  London  Stock  Exchange  thereby  be- 
comes necessarily  bound  by  any  decision  to  which  the  foreign  tribunal 
may  come  upon  a  matter  affecting  his  interests  ?  "  I  do  not  say  that 
that  is  express  authority,  but  it  seems  to  me  to  shew  that  very  learned 
Judges  were  not  prepared  to  accept  the  principle  that  the  mere  fact  of 
entering  into  contracts  in  a  foreign  country,  or  owning  propert)'  in  a 
foreign  country,  is  sufficient  to  make  the  person  contracting  or  owning 
property  in  a  foreign  country  amenable  to  the  laws  of  that  country  un- 
der all  circumstances.  When  the  case  came  before  the  Exchequer 
Chamber,  Lord  Cairns,  in  giving  the  judgment  of  that  court,  said  they 
affirmed  the  decision  on  the  ground  on  which  the  majority  in  the  court 
below  had  decided  it,  and  did  not  express  any  opinion  on  the  other 
point  raised.  Under  these  circumstances  I  think  that  the  proposition 
as  stated  by  Mr.  Justice  Channell  is  too  wide.  In  my  opinion,  some- 
thing more  than  the  mere  ownership  of  property,  or  the  entering  into  a 
contract  of  partnership,  is  required  in  order  to  enable  a  foreign  judg- 
ment to  be  used  as  res  judicata  against  a  man  who  has  ceased  to  reside 
in  the  country,  who  was  not  resident  in  the  country  at  the  time  that  the 
proceedings  were  instituted,  and  who  has  not  submitted  to  the  juris- 
diction of  its  courts.  I  think,  therefore,  that  this  appeal  must  be  al- 
lowed. 


GROVER  &  BAKER  SEWING  MACH.  CO.  v.  RADCLIFFE. 

(Supreme  Court  of  the  United  States,  1S90.     137  U.  S.  287,  11  Sup.  Ct.  92,  34 

L.  Ed.  G70.) 

l^^rror  to  the  Court  of  Appeals  of  Maryland. 

This  was  an  action  brought  in  the  circuit  court  of  Cecil  county,  Md., 
by  the  Grover  &  Baker  Sewing  Machine  Company,  a  Massachusetts 
corporation,  against  James  Benge  and  John  Benge,  who  were  then 


Ch.    4)  JUDGMENTS.  127 

citizens  of  Delaware,  by  summons  and  attachment  on  warrant,  which 
was  served  on  WilHam  P.  RadcHffe,  garnishee.  This  suit  w^as  institut- 
ed  to  recover  the  suniof$2^00  on  a  judgment  obtained  by  plaintiff 
in  the  court  of  mmmrmjVlpa  s  irTanrt  tor  rFe  county  of  Tlipgl-pr,  iii  \he 
State  of  Penus3^Tvania.  The  judgment  was  entered  by  the  prothono- 
tary  of  the  court  upon  a  bond  executed  by  defendants,  one  of  whom 
was  at  the  time  a  citizen  of  Pennsylvania,  and  the  other  (John  Benge) 
a  citizen  of  Maryland,  authorizing  "any  attorney  of  any  court  of  rec- 
ord in  the  state  of  New  York  or  any  other  state  to  confess  judgment." 
Under  the  law  of  the  state  of  Pennsylvania  the  prothonotary  of  any 
court  of  record  within  the  commonwealth  was  authorized  to  enter 
judgment  upon  such  a  bond  without  the  agency  of  an  attorney  or  dec- 
laration filed.  A  judgment  for  the  defendant  was  affirmed  by  the  Court 
of  Appeals  of  Maryland.^^ 

Fuller,  C.  J.  The  Maryland  ^circuit  court  arrived  at  its  ronrln- 
sion  upon  the  ground  that  the  statuteof  Pennsylvania  relied  on  did  not 
authorize  the  prothonotary_ot_t.h^  courtjjf_ujmuiuirpteas  ot  that  state" 
to  enter  thp  jT?7tgmpni- •"am-l  tjif' rniTrfof  appeal  =:  of  Maryland,  readied 
the  same  result  upon  the  ground  that  the  judgment  was  void  as  against 
John  Benge7brei:ause~tEe]court  rendering  iTTiad  acquired  no  juriscliction 
over_hi.s^)erson.  \f  is  i^ettlerl  that  notwithstanding-  the  provision  of  the 
Constitution  of  the  United  States,  which  declares  that  "full  faith  and 
credit  shall  be  given  in  each  state  to  the  public  acts,  records,  and  ju- 
dicial proceedings  of  every  other  state"  (article  4,  §  1),  and  the  acts  of 
Congress  passed  in  pursuance  thereof  (1  Stat.  122;  Rev.  St.  §  905"), 
and  notwithstanding  the  averments  in  the  record  of  the_  jiidorneirMj^ 
self,  thejurisdiction  oFthe  court  by  wdiich  a  judgment  is  rendemHn 
any  state..qay^e  questioned  m  a  collateral  proceeding;  that  the  jin-is- 
diction  of  a  foreign  court  over  the  person  or  the  subject-matter,  em- 
braced in  the  judgment  or  decree  of  such  court,  is  always  open  to  in- 
quiry ;  that,  in  this  respect,  a  court  of  another  state  is  to  be  regarded 
as  a  foreign  court;  and  that  a  personal  judgment  is  without  validity 
if  rendered  by  a  state  court  in  an  action  upon  a  monev  demand  against 
a  nonregtdgnrpt  the  stafeTjlgori  whom  no  personal  service  of  process 
within  thestate_  was  iiiade^^and  who  did  not  appear  D'Arcv  v. 
Ketchum7lTlfow7(UrsT)~i6'S,  13X.  Ed.  648;  Thompson  v.  Whit- 
man, 18  Wall.  457,  21  L.  Ed.  897 ;  Hall  v.  Lanning,  91  U.  S.  IGO,  23  L. 
Ed.  271 ;  Pennoyer  v.  Neff,  95  U.  S.  714,  24  L.  Ed.  565.  The  rule  is 
not  otherwise  in  the  state  of  Pennsylvania,  w^here  the  judgment  in 
question  \vas~rendered  (Guthrie  v.  Lowry.  84  Pa.  533 ;  Scott  v.  Noble, 
72  Pa.  115,  13  Am.  Rep.  663 ;  Noble  v.  Thompson  Oil  Co.,  79  Pa.  354, 
21  Am.  Rep.  66;  Steel  v.  Smith,  7  Watts  &  S.  [Pa.]  447),  nor  in  the 
state  of  Maryland,  where  the  action  under  review  was  brought  upon 
jL^Bank^ot  Umted^States  v.  jMerchants'  Bank  of  Baltimore,  7  Gill 
[Md.]  415;  Clark  v.  Bryan,  16  Md.  171;  Weaver  v.  Boggs,  38  Md. 

21  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port 


128  GENERAL  PKOvisioNS.  (Part  1 

255).  And  the  distinction  between  the  vaHdity  of  a  judgment  rendered 
in  one  state,  under  its  local  laws  upon  the  subject,  and  its  validity  in 
another  state,  is  recognized  by  the  highest  tribunals  of  each  of  these 
states.  Thus,  in  Steel  v.  Smith,  7  Watts  &  S.  (Pa.)  447,  it  was  de- 
cided, in  1844,  that  a  judgment  of  a  court  of  another  state  does  not 
bind  the  person  of  the  defendant,  in  another  jurisdiction,  though  it 
might  do  so  under  the  laws  of  the  state  in  which  the  action  was 
brought,  and  that  the  act  of  Congress  does  not  preclude  inquiry  into 
the  jurisdiction,  or  the  right  of  the  state  to  confer  it.  The  action  was 
brought  on  a  judgment  rendered  in  Louisiana,  and  Mr.  Chief  Justice 
Gibson,  in  delivering  the  opinion  of  the  court,  said:  "The  record 
shows  that  there  was  service  on  one  of  the  joint  owners  which,  in  the 
estimation  of  the  law  of  the  court,  is  service  on  all ;  for  it  is  affirmed 
in  Hill  v.  Bowman,  already  quoted  [14  La.  445],  that  the  state  of 
Louisiana  holds  all  persons  amenable  to  the  process  of  her  courts, 
whether  citizens  or  aliens,  and  whether  present  or  absent.  It  was  ruled 
in  George  v.  Fitzgerald,  12  La.  604,  that  a  defendant,  though  he  re- 
side in  another  state,  having  neither  domicile,  interest,  nor  agent  in 
Louisiana,  and  having  never  been  within  its  territorial  limits,  may  yet 
be  sued  in  its  courts  by  the  instrumentality  of  a  curator  appointed  by 
the  court  to  represent  and  defend  him.  All  this  is  clear  enough,  as 
well  as  that  there  was  in  this  instance  a  general  appearance  by  attor- 
ney, and  a  judgment  against  all  the  defendants,  which  would  have  full 
faith  and  credit  given  to  it  in  the  courts  of  the  state.  But  that  a  judg- 
ment is  always  regular  when  there  has  been  an  appearance  by  attor- 
ney, with  or  without  warrant,  and  that  it  cannot  be  impeached  collat- 
erally for  anything  but  fraud  or  collusion,  is  a  municipal  principle, 
and  not  an  international  one  having  place  in  a  question  of  state  juris- 
diction or  sovereignty.  Now,  though  the  courts  of  Louisiana  would 
enforce  this  judgment  against  the  persons  of  the  defendants,  if  found 
within  reach  of  their  process,  yet,  where  there  is  an  attempt  to  enforce 
it  by  the  process  of  another  state,  it  behooves  the  court  whose  assist- 
ance is  invoked  to  look  narrowly  into  the  constitutional  injunction, 
and  give  the  statute  to  carry  it  out  a  reasonable  interpretation."  7 
Watts  &  S.  (Pa.)  449,  450. 

Referring  to  section  1307  of  Mr.  Justice  Story's  Commentaries  on 
the  Constitution,  and  the  cases  cited,  to  which  he  adds  Benton  v.  Bur- 
got,  10  Serg.  &  R.  (Pa.)  240,  the  learned  judge  inquired :  "What,  then, 
is  the  right  of  a  state  to  exercise  authority  over  the  persons  of  those 
who  belong  to  another  jurisdiction,  and  who  have  perhaps  not  been 
out  of  the  boundaries  of  it?"  (7  Watts  &  S.  [Pa.]  450),  and  quoted 
from  Vattel,  Burge,  and  from  Mr.  Justice  Story  (Confl.  Laws,  c.  14, 
§  539),  that  "  'no  sovereignty  can  extend  its  process  beyond  its  own 
territorial  limits,  to  subject  other  persons  or  property  to  its  judicial 
decisions.  Every  exertion  of  authority  beyond  these  limits  is  a  mere 
nullity,  and  incapable  of  binding  such  persons  or  property  in  other 
tribunals,'  "  and  thus  continues :  "Such  is  the  familiar,  reasonable,  and 


Ch.  4) 


JUDGMENTS. 


129 


just  principle  of  the  law  of  nations ;  and  it  is  scarce  supposable  that 
the  framers  of  the  Constitution  designed  to  abrogate  it  between  states 
which  were  to  remain  as  independent  of  each  other,  for  all  but  national 
purposes,  as  they  were  before  the  Revolution.  Certainly  it  was  not 
intended  to  legitimate  an  assumption  of  extraterritorial  jurisdiction 
which  would  confound  all  distinctive  principles  of  separate  sovereign- 
ty; and  there  evidently  was  such  an  assumption  in  the  proceedings 
under  consideration.  *  *  *  But  I  would  perhaps  do  the  juris- 
prudence of  Louisiana  injustice,  did  I  treat  its  cognizance  of  the  de- 
fendants as  an  act  of  usurpation.  It  makes  no  claim  to  extraterri- 
torial authority,  but  merely  concludes  the  party  in  its  own  courts,  and 
leaves  the  rest  to  the  Constitution  as  carried  out  by  the  act  of  Con- 
gress. When,  however,  a  creditor  asks  us  to  giye  such  a  judgment 
what  is  in  truth  an  extraterritorial  effect,  he  asks  us  to  do  what  we 
will  not,  till  we  are  compelled  by  a  mandate  of  the  court  in  the  last  re- 
sort."   7  Watts  &  S.  (Pa.)  451. 

In  Weaver  v.  Bogg^s,  38  Md.  255,  it  was  held  that  suit  could  not  be 
maintained  in  the  courts  of  Maryland  upon  a  judgment  of  a  court  of 
Pennsylvania  rendered  upon  returns  of  nihil  to  two  successive  writs 
of  scire  facias  issued  to  revive  a  Pennsylvania  judgment  of  more  than 
20  years'  standing,  where  the  defendant  had  for  more  than  20  years 
next  before  the  issuing  of  the  writs  resided  in  Maryland,  and  out  of  the 
jurisdiction  of  the  court  that  rendered  the  judgment.  The  court  said: 
"It  is  well  settled—that  a  ^ud^O^gJit  obtamed  in_a_courtof  one  state 
cannot  be  enforced^  th^j:ourts  and  against  a  citizen  of  anp'  ^er,  uii- 
less  the  court  renderingthejudgment  has  acquired  jurisdiction  over 
the  d>?feT!gantT)y  arfiiarse£}y€  of  processjjgQILilini^-OlJ^xJlig  volun- 


tary  appparflap<>-to-tbp  suit  and-Sllbgii^^ri  to  that  jurisdiction/  Such 
a  judgment  mayJbe  perfectly  valid  in  the  Jurfsdiction  where  rendered, 
and  prrforrpd^thprp  ever\  jofainst  tlig  property,  effect&^and  credits  of_a 
nonresident  defendant  there  situated,  but  it  cannot  be  enforced__Qr 


made  the^oundation  of  ^n  action  m  another  state.  A  law  whic 
stitutes  constructive^  f orjctual  noticels  binding  upon  persons  dom 
within  the  statgjvhere  Tuch  law~~f)Fevails,  and  as  respects  the  property 
of  others  there  ^tuated,  but  can  bind  neithef  person  nor" property-"  h^ 
yond  its  limitsT  This  rule  is  based  upon  international  law,  and  upon 
thaf^fraturalprotection  which  every  country  owes  to  its  own  citizens. 
It  concedes  the  jurisdiction  of  the  court  to  the  extent  of  the  state 
where  the  judgment  is  rendered,  but  upon  the  principle  that  it  would 
be  unjust  to  its  own  citizens  to  give  effect  to  the  judgments  of  a  for- 
eign tribunal  against  them  when  they  had  no  opportunity  of  being 
heard,  its  validity  is  denied."  Publi£isls_Concur_that  domicile  general-^ 
ly  determines  the  particular  territorial  jurisprudence  to  which  everv, 
individuaTis  subjected.  As  correctly  saiOy  Mr.  Wharton,  the  nation-* 
ality  of  our  citizens  is  that  of  the  United  States,  and  by  the  laws  of  the 
United  States  they  are  bound  in  all  matters  in  which  the  United  States 
are  sovereign ;  but  in  other  matters,  their  domicile  is  in  the  particular 

LOR.CONF.L.— 9 


)midTgr_\      /^\y»^^  S 


130 


GENERAL  PROVISIONS. 


(Part  1 


state,  and  that  determines  the  apphcatory  territorial  jurisprudence.  A' 
foreign  judgment  is  impeachable  for  want  of  personal  service  within 
the  jurisdiction  of  the  defendant,  this  being  internationally  essential 
to  jurisdiction  in  all  cases  in  which  the  defendant  is  not  a  subject  of  the 
state  entering  judgment,  and  it  is  competfijitfor  a  defendant  in  an  ac- 
tion on  a  judgment  of  a  sister^Statp    n^;  nian  artTrirr  

ment,  to  serup,  as  a  defense,  want  of  juris^ction,  ni  tnat  hewas  not  aiT" 
inhabitant  of  the  StSTeTendering  the  judgment,  and  had  not  Leen^sety- 
ed  with  process.  _and-jiid_J3nt  ejiter_his  appgaraoce!      WTiart.   Confl. 
Laws,  §§  32f'6547660;  Story,  Confl.  Laws,  §§  539,  540,  586.     John 
Benge  was  a  ritizerL-oiJVTarvland  wh£ii-44fe,  executed  this  obligation. 


The  subject-matter  of_the_suit  ag^instj2Jm_ in  PennsylvarTT 

the  determiffation  of  his  personal  liabilityrand  it  was  necessary  to"l:he 

validity  of  the  in^lrrmpnr  atJpnf.t  e.Uewhprptll^^  i^  _ghnrild  appea?-  fti-ifn 

the  record  tl7atHh[HTiad_bg£ft--b«iught^  withni  the   jurisdiction  ofjjie 

Pennsylvania  court- 

or  that  he  had 


5y^^ervice_of  process,  orJiis_vpluntary  appearance, 
some  manner  authorized  the  proceeding.  By  the 
bond  in  question  he  alilhorized  "any  attorney  of  any  court~of  record  in 
the  state  of  New  York,  or  any  other  state,  to  confess  judgment  against 
him  (us)  for  the  said  sum,  with  release  of  errors,"  etc.  But  the  rec- 
ord did  not  show,  nor  is  it  contended,  that  he  was  served  with  process, 
or  voluntarily  appeared,  or  that  judgment  was  confessed  by  an  attor- 
ney of  any  court  of  record  of  Pennsylvania.  LTpon  its  face,  then,  the 
judgment  was  invalid,  and  to  be  treated  as  such  when  offered  in  evi- 
dence in  the  Maryland  court. 

It  is  said,  however,  that  the  judgment  was  entered  against  Benge 
by  a  prothonotary,  and  that  the  prothonotary  had  power  to  do  this 
under  the  statute  of  Pennsylvania  of  February  24,  1806.  Laws  Pa. 
1805-06,  p.  347.  This  statute  was  proved  as  a  fact  upon  the  trial  in 
Maryland,  and  may  be  assumed  to  have  authorized  the  action  taken, 
though  under  Connay  v.  Halstead,  73  Pa.  354,  that  may,  perhaps,  be 
doubtful.  And  it  is  argued  that  the  statute,  being  in  force  at  the  time 
this  instrument  was  executed,  should  be  read  into  it  and  considered 
as  forming  a  part  of  it,  and  therefore  that  John  Benge  had  consented 
that  judgment  might  be  thus  entered  up  against  him  without  service, 
of  process  or  appearance  in  person  or  by  attorney.  But  we  do  not 
think  that  a  citizen  of  another  state  than  Pennsylvania  can  be  thus 
presumptively  held  to  knowledge  and  acceptance  of  particular  statutes 
of  the  latter  state.  What  Benge  authorized  was  a  confessiojua£4iidg- 
ment  by  any  attorney  of  any  courFoFrecord  in  the  stale  of  New  York 
or  any  other  state,  anidhte3ai-^ua^lTt_jQ_in^^ 

authority  conferred^_-^B^ZliIs_terms-^lie_jdid  not  consent  to  he  bound  hy 
the  local  laws  of_5veiy--si:aieJnjtheJUmoi^ 

judgment  against _their  own  citizens  without^service  or  appearance, 
but,  on  the_j:ontrary,rnadjr""sticli" appearance  a  condition_^f_iJKlg- 
meato  And  eveiLJi-4ii^^'^^'^t-cauld.jLa\:£_j3een  entered  agaiiisLUi^i, 
not  being  serv^djindhigLagpearing  iiieach_ofJHe_states  of  the  Uniom 


Ch.    4)  JUDGMENTS.  131 

in  accordance  with  the  laws  therein  evi^tinp-  upon  the  snbject.  he 
could  not  be~held  liaBle'upon  such  judgmentjn^  an3^_otlT"''  ^^^^p  thnn 
that  in"  which  it  was  so  rendered;  "confrary_jtgJ'1ip  ^^\v^  ^nr\  policy  of 
such  sTate.  The  courts  of  l^Tarylandwere  not  bound  to  hold  this 
judgment  as  obligatory  either  on  the  ground  of  comity  or  of  duty, 
thereby  permitting  the  law  of  another  state  to  override  their  own.  No 
color  to  any  other  view  is  given  by  our  decisions  in  Johnson  v.  Chicago 
&  P.  Elevator  Co.,  119  U.  S.  388,  400,  7  Sup.  Ct.  254,  30  L.  Ed.  447, 
and  Hopkins  v.  Orr,  124  U.  S.  510,  8  Sup.  Ct.  590,  31  L.  Ed.  523, 
cited  for  plaintiff  in  error.  Those  cases  involved  the  rendition  of 
judgments  against  sureties  on  restitution  and  appeal  bonds  if  judg- 
ment went  against  their  principals,  and  the  sureties  signed  with  refer- 
ence to  the  particular  statute  under  which  each  bond  was  given,  nor 
did,  nor  could,  any  such  question  arise  therein  as  that  presented  in  the 
case  at  bar.     Judgment  afifirmed.-^ 

2  2  See  Patter  v.  Hoffman.  35  Kan.  215,  10  Pac.  576  (18S6) ;  Teel  v.  Tost.  12,S 
N.  T.  3S7,  28  N.  E.  353,  13  L.  R.  A.  796  (1891) ;  Van  Norman  v.  Gordon.  172 
Mass.  576,  53  N.  E.  267,  44  L.  R.  A.  S40,  70  Am.  St.  Rep.  304  (1899);  Veunum 
V.  Mertens,  119  Mo.  App.  461,  95  S.  W.  292  (1906) ;  Cuvkenclall  v.  Doe.  129 
Iowa.  453.  105  N.  W.  698,  3  L.  R.  A.  (N.  S.)  449,  113  Am.  St.  Rep.  472  (1906). 

"Few  things  are  more  disputable  than  the  limits  within  which  the  courts  of 
a  country  have  a  right  to  exercise  jurisdiction.  The  plain  truth  is — and  this 
holds  good  of  England  no  less  than  of  other  states — that  every  country  claims 
for  its  own  courts  wider  extraterritorial  authority  than  it  willingly  concedes 
to  foreign  tribunals."    Dicey,  Conflict  of  Laws,  29. 

As  to  judgments  in  general,  see  94  Am.  St.  Rep.  532-559 ;  103  Am.  St.  Rep. 
304-330 ;    20  L.  R.  A.  668-682. 

As  to  the  territorial  jurisdiction  of  nations  and  jurisdiction  on  the  high 
seas,  see  Scott,  Cases  on  International  Law,  170-369;  46  L.  R.  A.  264-281; 
Charles  N.  Gregory.  .Jurisdiction  over  Foreign  Ships  in  Territorial  Waters. 
2  Mich.  Law  Rev.  333-357. 

As  to  discretion  of  a  court  to  decline  jurisdiction  in  a  given  case,  see  The 
Belgenland,  114  U.  S.  355.  5  Sup.  Ct.  860,  29  L.  Ed.  152  (1885):  Logan  v.  Bank 
of  Scotland,  75  L.  J.  K.  B.  218  (1905) ;  59  Am.  St.  Rep.  870-878;  11  Cyc.  683- 
684. 

As  to  jurisdiction  over  citizens  of  another  state  or  nation,  see  6  Am.  St. 
Rep.  179-190.  As  to  jurisdiction  over  absent  citizens,  see  53  Am.  St.  Rep.  179- 
191.  See,  also,  Edward  Q.  Keasbey,  .Jurisdiction  over  Nonresidents  in  Per- 
sonal Actions,  5  Col.  Law  Rev.  43(5-455.  As  to  the  granting  of  an  injunc- 
tion against  the  bringing  of  suits  in  another  jurisdiction,  see  59  Am.  St.  Rep. 
879-885.  As  to  what  service  is  sufficient  to  constitute  due  process  of  law, 
see  50  L.  R.  A.  577-600. 

Continental  Law. — As  to  the  general  basis  of  personal  jurisdiction  in  con- 
tinental countries,  see  A.  Pillet,- Jurisdiction  over  Foreigners,  18  Harv.  Law 
Rev.  325-340. 

French  courts  are  on  principle  incompetent  with  respect  to  actions  between 
foreigners,  but  many  exceptions  have  been  established.  See  note  by  A.  Pillet 
to  App.  Paris,  Dec.  5,  1890  (S.  1892,  2,  233).  With  respect  to  municipal  juris- 
diction, see  Genua  nil.  sections  12-40,  Code  Civ.  Proc.  France,  articles  14,  15, 
Civ.  Code.;  article  59,  Code  Civ.  Proc.  Italy,  articles  90-97,  105-107,  Code 
Civ.  Proc.  Under  article  105,  subd.  3,  jurisdiction  is  sometimes  taken  by  way 
of  retorsion.  Cass.  Turin.  Aug.  22.  1873  (Annali  1873,  1,  432);  App.  Casale, 
April  10,  1891  (La  Legge  1892,  1,  166). 


132  GENERAL  PROVISIONS.  (Part  1 

ST.  CLAIR  V.  COX. 

(Supreme  Court  of  the  United  States,  1882.     106  U.  S.  350,  1  Sup.  Ct.  354,  27 

L.  Ed.  222.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern  Dis- 
trict of  Michigan. 

FiEi^D,  J.  This  action  was  brought  by  the  plaintiff  in  the  court  be- 
low to  recover  the  amount  due  on  two  promissory  notes  of  the  defend- 
ants, each  for  the  sum  of  $2,500,  bearing  date  on  the  second  of  Au- 
gust, 1877,  and  payable  five  months  after  date,  to  the  order  of  the 
Winthrop  Mining  Company,  at  the  German  National  Bank,  in  Chicago, 
with  interest  at  the  rate  of  7  per  cent,  per  annum.  To  the  action  the 
defendants  set  up  various  defenses,  and,  among  others,  substantially 
these:  That  the  consideration  of  the  notes  had  failed;  that  they  were 
given  with  two  others  of  like  tenor  and  amovmt  to  the  Winthrop 
Mining  Company,  a  corporation  created  under  the  laws  of  Illinois,  in 
part  payment  for  ore  and  other  property  sold  to  the  defendants  upon 
a  representation  as  to  its  quantity,  which  proved  to  be  incorrect ; 
that  only  a  portion  of  the  quantity  sold  was  ever  delivered,  and  that 
the  value  of  the  deficiency  exceeded  the  amount  of  the  notes  in  suit ; 
that  at  the  commencement  of  the  action,  and  before  the  transfer  of  the 
notes  to  the  plaintiff,  the  Winthrop  Mining  Company  was  indebted 
to  the  defendants  in  a  large  sum,  viz.,  $10,000,  upon  a  judgment  re- 
covered by  them  in  the  circuit  court  of  Marquette  county,  in  the  state 
of  Michigan,  and  that  the  notes  were  transferred  to  him  after  their 
maturity  and  dishonor,  and  after  he  had  notice  of  the  defenses  to  them. 
On  the  trial,  evidence  was  given  by  the  defendants  tending  to  show 
that  the  plaintiff  was  not  a  bona  fide  holder  of  the  notes  for  value. 
A  certified  copy  of  that  judgment  was  also  produced  by  them  and  of- 
fered in  evidence,  but  on  his  objection  that  it  had  not  been  shown  that 
the  court  had  obtained  jurisdiction  of  the  parties,  it  was  excluded,  and 
to  the  exclusion  an  exception  was  taken.  The  jury  found  for  him  for 
the  full  amount  claimed,  and  judgment  having  been  entered  thereon, 
the  defendants  brought  the  case  here  for  review.  The  ruling  of  the 
court  below  in  excluding  the  record  constitutes  the  only  error  assigned. 

The  judgment  of  the  circuit  court  in. Michigan  was  rendered  in  an 
action  commenced  by  attachment.  If  the  plaintiffs  in  that  action  were, 
at  its  commencement,  residents  of  the  state,  of  which  some  doubt  is 
expressed  by  counsel,  the  jurisdiction  of  the  court,  under  the  writ,  to 
dispose  of  the  property  attached  cannot  be  doubted,  so  far  as  was 
necessary  to  satisfy  their  demand.  No  question  was  raised  as  to  the 
validity  of  the  judgment  to  that  extent.  The  objection  to  it  was  as 
evidence  that  the  amount  rendered  was  an  existing  obligation  or  debt 
against  the  company.  If  the  court  had  not  acquired  jurisdiction  over 
the  company,  the  judgment  established  nothing  as  to  its  liability,  be- 
yond  the   amount  which   the   proceeds   of  the   property   discharged. 


Ch.    4)  JUDGMENTS.  133 

There  was  no  appearance  of  the  company  in  the  action,  and  judgment 
against  it  was  rendered  for  $6,450  by  default.  The  officer,  to  whom 
the  writ  of  attachment  was  issued,  returned  that,  by  virtue  of  it,  he 
had  seized  and  attached  certain  specified  personal  property  of  the  de- 
fendant, and  had  also  served  a  copy  of  the  writ,  with  a  copy  of  the 
inventory  of  the  property  attached,  on  the  defendant,  "by  delivering 
the  same  to  Henry  J.  Colwell,  Esq.,  agent  of  the  said  Winthrop  Mining 
Company,  personally,  in  said  county." 

The  laws  of  Michigan  provide  for  attaching  property  of  absconding, 
fraudulent,  and  nonresident  debtors  and  of  foreign  corporations. 
They  require  that  the  writ  issued  to  the  sheriff,  or  other  officer  by 
whom  it  is  to  be  served,  shall  direct  him  to  attach  the  property  of  the 
defendant,  and  to  summon  him  if  he  be  found  within  the  county,  and 
also  to  serve  on  him  a  copy  of  the  attachment  and  of  the  inventory 
of  the  property  attached.  They  also  declare  that  where  a  copy  of  the 
writ  of  attachment  has  been  personally  served  on  the  defendant  the 
same  proceedings  may  be  had  thereon  in  the  suit  in  all  respects  as  upon 
the  return  of  an  original  writ  of  summons  personally  served  where 
suit  is  commenced  by  such  summons.  2  Comp.  Laws  1871,  §§  6397, 
6413.  They  also  provide,  in  the  chapter  regulating  proceedings  by 
and  against  corporations,  that  "suits  against  corporations  may  be  com- 
menced by  original  writ  of  summons,  or  by  declaration,  in  the  same 
manner  that  personal  actions  may  be  commenced  against  individuals, 
and  such  writ,  or  a  copy  of  such  declaration,  in  any  suit  against  a  cor- 
poration, may  be  served  on  the  presiding  officer,  the  cashier,  the  sec- 
retary, or  the  treasurer  thereof ;  or,  if  there  be  no  such  officer,  or  none 
can  be  found,  such  service  may  be  made  on  such  other  officer  or  mem- 
ber of  such  corporation,  or  in  such  other  manner  as  the  court  in  which 
such  suit  is  brought  may  direct ;"  and  that  "in  suits  commenced  by  at- 
tachment in  favor  of  a  resident  of  this  state  against  any  corporation 
created  by  or  under  the  laws  of  any  other  state,  government,  or  coun- 
try, if  a  copy  of  such  attachment,  and  of  the  inventory  of  property  at- 
tached, shall  have  been  personally  served  on  any  officer,  member,  clerk, 
or  agent  of  such  corporation  within  this  state,  the  same  proceedings 
shall  be  thereupon  had,  and  with  like  effect,  as  in  case  of  an  attach- 
ment against  a  natural  person,  which  shall  have  been  returned  served 
in  like  manner  upon  the  defendant."  2  Comp.  Laws  1871,  §§  6544, 
6550. 

The  courts  of  ihe  United_States  only  regajjdJlidgments  of  the  state 
courts  establishing  personal  demands  as  havmg  validity  or  as  miport- 
ing  verity  wh^e  they  have  been  rendered  upon  personal  citation  of 
the  party,  ot%  what  is  the  same  thing,  of  those  ernpowered__to_rec£iY£— 
process  for  hirnTor  upon  his  vokmtarv  appearance. 

In  ;^ennover.j^:^eff  we  had  Q££ait2£32L£21Hl^^^  ^^  length  the  man- 
ner  in  which  state  rmirt2__rnri_  nrgnire  junsdiction  to  render  a  per- 
sonal  judgmettt-asrarnsFnonresidents  wJiLrh  would  be  j;eceived^jis_evi- 
dence  in  the  federal  courts]  and  we  held  that  personal  service  of  cita- 


134:  GENERAL  PROVISIONS.  (Part   1 

tion  on  the  party  or  his  voluntary  appearance  was,  with  some  excep- 
tions, es^rfial  to~the  jurisdiction  oTtHe^court  The  exceptions  related 
to  those  cases  where  proceedings^  are  ta^eiTin  a  state  to  determine  the 
status  of  one  of  its  citizens  towards  a  nonresident,  or  where  a  party 
has  agreed  to  accept  a  notification  to  others  or  service  on  them  as  cita- 
tion to  himself.  95  U.  S.  714,  24  L.  Ed.  565.  The  doctrine  of  that 
case  applies,  in  all  its  force,  to  personal  judgments  of  state  courts 
against  foreign  corporations.  The  courts  rendering  them  must  have 
acquired  jurisdiction  over  the  party  by  personal  service  or  voluntary 
appearance,  whether  the  party  be  a  corporation  or  a  natural  person. 
There  is  only  this  difference :  A  corporation,  being  an  artificial  being, 
can  act  only  through  agents,  and  only  through  them  can  be  reached, 
and  process  must,  therefore,  be  served  upon  them.  In  the  state  where 
a  corporation  is  formed  it  is  not  difficult  to  ascertain  who  are  au- 
thorized to  represent  and  act  for  it.  Its  charter  or  the  statutes  of  the 
state  will  indicate  in  whose  hands  the  control  and  management  of  its 
affairs  are  placed.  Directors  are  readily  found,  as  also  the  officers  ap- 
pointed by  them  to  manage  its  business.  But  the  moment  the  bound- 
ary of  the  state  is  passed  difficulties  arise;  it  is  not  so  easy  to  deter- 
mine who  represent  the  corporation  there  and  under  what  circum- 
stances service  on  them  will  bind  it.  Formerly  it  was  held  that  a  for- 
eign corporation  could  not  be  sued  in  an  action  for  the  recovery  of  a 
personal  demand  outside  of  the  state  by  which  it  was  chartered.  The 
principle  that  a  corporation  must  dwell  in  the  place  of  its  creation,  and 
cannot,  as  said  by  Chief  Justice  Taney,  migrate  to  another  sovereignty, 
coupled  with  the  doctrine  that  an  officer  of  the  corporation  does  not 
carry  his  functions  with  him  when  he  leaves  his  state,  prevented  the 
maintenance  of  personal  actions  against  it.  There  was  no  mode  of 
compelling  its  appearance  in  the  foreign  jurisdiction.  Legal  proceed- 
ings there  against  it  were,  therefore,  necessarily  confined  to  the  dispo- 
sition of  such  property  belonging  to  it  as  could  be  there  found ;  and  to 
authorize  them  legislation  was  necessary. 

In  A'IcOueen  v.  Middleton  Mfg.  Co.,  decided  in  1819,  the  Supreme 
Court  of  New  York,  in  considering  the  question  whether  the  law  of 
that  state  authorized  an  attachment  against  the  property  of  a  foreign 
corporation,  expressed  the  opinion  that  a  foreign  corporation  could  not 
be  sued  in  the  state,  and  gave  as  a  reason  that  the  process  must  be 
served  on  the  head  or  principal  officer  within  the  jurisdiction  of  the 
sovereignty  where  the  artificial  body  existed;  observing  that  if  the 
president  of  a  bank  went  to  New  York  from  another  state  he  would 
not  represent  the  corporation  there;  and  that  "his  functions  and  his 
character  would  not  accompany  him  when  he  moved  beyond  the  juris- 
diction of  the  government  under  whose  laws  he  derived  this  character." 
16  Johns.  (N.  Y.)  G.  The  opinion  thus  expressed  was  not,  perhaps, 
necessary  to  the  decision  of  the  case,  but  nevertheless  it  has  been  ac- 
cepted as  correctly  stating  the  law.  It  was  cited  with  approval  by  the 
Suj)reme  Court  of  Massachusetts,  in  1834,  in  Peckham  v.  North  Parish 


Ch.  4) 


JUDGMENTS. 


135 


in  Haverhill,  the  court  adding  that  all  foreign  corporations  were  with- 
out the  jurisdiction  of  the  process  of  the  courts  of  the  commonwealth. 
16  Pick.  (j\Iass.)  274.  Similar  expressions  of  opinion  are  found  in 
numerous  decisions,  accompanied  sometimes  with  suggestions  that  the 
doctrine  might  be  otherwise  if  the  foreign  corporation  sent  its  officer 
to  reside  in  the  state  and  transact  business  there  on  its  account.  Lib- 
bey  V.  Hodgdon,  9  N.  H.  394;  Moulin  v.  Trenton  Mut.  Life  &  Fire 
Ins.  Co.,  24  N.  J.  Law,  222. 

This  doctrine  of  the  exemption^ of  a  corporation^rom  suit  in  a  state 
other  than  that  of~Ttgl3:fgatlon7wasjth.P  f^iisp  of  mnrh.  inrnnvpniprire 
and  often  of  manifest  injustice.  The  great  increase- ift-^tlrc-mniibcF-af 
corporations  of  late  years^,_and  the  immense  extent^nf  their  hnsiness, 
only  made  this  incoiiyenipnrpaiiH  inJiT^I-irp  mora-frnqnont-aqd  marked 
Corporations  now  eiTJ-^er_vnto  a1]_jJ2e_JildlTstrie&-nf  the  country.  The 
business  of  banking,  mining,  manufacturing,  transportation,  and  in- 
surance is  almost  entirely  carried  on  by  them,  and  a  large  portion  of  the 
wealth  of  the  country  is  in  their  hands.  Incorporated  under  the  laws 
of  one  state,  they  carry  on  the  most  extensive  operations  in  other 
states.  To  meet  andjDbviate-lliis  inconveniaicg_andjii]ustice,  the  Leg- 
islatures  of  several  states_rnterposed  a nrL provided- iaiLservice  of  pro- 
cess  on  nfJRrersJmd  agents— ej— foreign  corporations  doing  business 
therein.  Whilethe  theoretical  and  legal.  :v.iew,  thaljhe  domicile  oF  a 
corporation  is  only  in  thestate  where  it  is  created,  was  adrnTttedJir 
was  perceived  thatTwHen, jLfomgn  __corpora_tipn  sent  its  officers  and.. 
agents  into  other  states  and  op.en.eiLQi£ces,_^n_d.carried  on  its  businsft^-' 
there,  it  was,  iWiZfferf,  as  murh  rppresented  byL_th£iii_there _as  in  the 
state  ^f  its  creation.  As  it  was  protected  by  the  laws  of  those  states, 
allowed  to  carry  on  its  business  within  their  borders,  and  to  sue  in  their 
courts,  it  seemed  only  right  that  it  should  be  held  responsible  in  those 
courts  to  obligations  and  liabilities  there  incurred.  xA.ll  that  there  is  in 
the  legal  residence  of  a  corporation  in  the  state  of  its  creation  consists 
in  the  fact  that  by  its  laws  the  corporators  are  associated  together  and 
allowed  to  exercise  as  a  body  certain  functions,  with  a  right  of  succes- 
sion in  its  members.  Its  officers  and  agents  rnrr^i-jtiitp  ^11  that  it;  xm^iMp — 
of  its  existence;  and.th^y  may  be  authonzpfrtrv-act  for  it  witlmnt  as 
well  as  within  the  state.  There  would  seem,  therefore,  to  be  no  sound 
reason  why,  to  tEeextent  of  their  agency,  they  should  not  be  equally 
deemed  to  represent  it  in  the  states  for  which  they  are  respectively  ap- 
pointed when  it  is  called  to  legal  responsibility  for  their  transactions. 
The  case  is  unlike  that  of  suits  against  individuals.  They  can  act  by 
themselves,  and  upon  them  process  can  be  directly  served,  but  a  corpo- 
ration can  only  act  and  be  reached  through  agents.  Serving  process 
on  its  a^PTits_jri  nthpr  statp.g^ .  fnr  i-nnttnro  w''th'"»1  th^  sphere  of  thpjf 
agency,  is,  in^effect,  serving^jj-ocess  on  it  as  much  so  as  if  such  agents 
resided  in  the  state  where  it_Ayj.a-iii£ated. 

A  corporation  of  one  state  cannot  do  business  in  another  state  with- 
out the  latter's  consent,  express  or  implied,  and  that  consent  may  be 


136  GENERAL  PROVISIONS.  (Part  1 

accompanied  with  such  conditions  as  it  may  think  proper  to  impose. 
As  said  by  this  court  in  Lafayette  Ins.  Co.  v.  French,  "these  conditions 
must  be  deemed  vaHd  and  effectual  by  other  states  and  by  this  court, 
provided  they  are  not  repugnant  to  the  Constitution  or  laws  of  the 
United  States  or  inconsistent  with  those  rules  of  public  law  which 
secure  the  jurisdiction  and  authority  of  each  state  from  encroachment 
by  all  others,  or  that  principle  of  natural  justice  which  forbids  condem- 
nation without  opportunity  for  defense."  18  How.  404,  407,  15  L.  Ed. 
451 ;  Paul  v.  Virginia,  8  Wall.  168,  19  L.  Ed.  357. 

The  state  may,  theref  orej_m2POseas_a  condition  upon  which  a  for- 
eign corporation  shall  be  permitted""to  do  business  within~her  limits, 
that  it  shall  stipulate  that  in  any  litigation  arising  ouf^Fits  transac- 
tions in  the  state,  it  will  accept  as  sufficient  the  service  ot  procession 
its  agents  or  persons. -spscially  designated,  and  the"condition  would 
be  eminpntly  fit  and  'p]^f  And  such  condition  and  stipulation  may 
be  implied  as  well  as  expressed.  If  a  state  permits  a  foreign  cor- 
poration to  do  business  within  her  limits,  and  at  the  same  time  pro- 
vides that  in  suits  against  it  for  business  there  done,  process  shall  be 
served  upon  its  agents,  the  provision  is  to  be  deemed  a  condition  of 
the  permission;  and  corporations  that  subsequently  do  business  in 
the  state  are  to  be  deemed  to  assent  to  such  condition  as  fully  as 
though  they  had  specially  authorized  their  agents  to  receive  service 
of  the  process.     Such  condition  must  not,  howeveiV-.^ncrpach  upon 

that  principle    of   natural    jiic;tirp    wliirh    rpqnirp';   nntirp    nf   a    .t;iiil-    tO    a 

party  before  he  can  be  bound  by  it.  Jt  jnmsLJhe_-neasmiablej^  ajid  the 
service  provided  for  should  be  only  upon  such  agents  as  may^be  prop- 
erly deemed  representatives  of  the  foreign  corporation.  The  decision 
of  this  court  in  Lafayette  Ins.  Co.  v.  1^'rench,  to  which  we  have  already 
referred,  sustains  these  views. 

The  state  of  Mlchlgran  permits  foreign^orporatlons  to  transact  busi- 
ness  within  her  limits.  Either  by  express  enactment,  as  in  the  case  of 
insurance  companies,  or  by  her  acquiescence,  they  are  as  free  to  engage 
in  all  legitimate  business  as  corporations  of  her  own  creation.  Her 
statutes  expressly  provide  for  suits  being  brought  by  them  in  her 
courts,  and  for  suits  by  attachment  being  brought  against  them  in 
favor  of  residents  of  the  state.  And  in  thgse^  attachment  suits  they 
authorize  the  service  of  a  copy  of  the  writ  of  attachm£nt,_mtBra  copy 
of  the  inventory  of  the  property  attached,  on  "any  oi&C£r,-Jiieini)er, 
clerk,  or  agent  of  such  corporajjon^"jvyithin  the  state,^and_giv€-to  a 
personal  service  of  a  copy  of_thewrit  a  n  d  nf  th  e  jn  ven  toryL-Of^-rm  e  of 
these  persons  the  force  and  effect  of  personal  service  of  a  summons 
on  a  defendant  in  suits  commenced  by  summons. 

It  thus  seems  that  a  writ  of  foreign  attachment  in  that  state  is 
made  to  serve  a  double  purpose — as  a  command  to  the  officer  to  at- 
tach property  of  the  corporation  and  as  a  summons  to  the  latter  to 
appear  in  the  suit.  We  do  not,  however,__underslaud__thelaws  as 
authorizing  the  service  of  a  copy  of  thewrit,  as  a  summons,  upon  an 


Ch.    4)  JUDGMENTS.  137 

agent  of  a  foreigri  corporation  unless.,  the  corporation Jbe_£ngag"ed  in 

business  in  the  state,  and  the  agent  be  appointed  _to  a.ct_there.     We  so      "N      ^ 

construe   the  words   "agent^of  such   corporation   within  thjs^  state."        I    _S!^!2^^^^ 


They  do  not  sanction  service  upon  an  officer  or  agen^qf  the  cor 
tion  who  resideVlrr  another  state,  and  is  only  casiiallvLm-ilig^ state,  anil 
not  charged  with  any  business  of  the  corporatiqnjhere.  The  decision 
in  Newell  v.  Great  Western  Ry.  Co.  of  Canada,  reported  in  19  Mich. 
336,  supports  this  view,  although  that  was  the  case  of  an  attempted 
service  of  a  declaration  as  the  commencement  of  the  suit.  The  defend- 
ant was  a  Canadian  corporation  owning  and  operating  a  railroad  from 
Suspension  Bridge  in  Canada  to  the  Detroit  line  at  Windsor,  opposite 
Detroit,  and  carrying  passengers  in  connection  with  the  Michigan 
Central  Railroad  Company,  upon  tickets  sold  by  such  companies  re- 
spectively. The  suit  was  commenced  in  Michigan,  the  declaration  al- 
leging a  contract  by  the  defendant  to  carry  the  plaintiff  over  its  road, 
and  its  violation  of  the  contract  by  removing  him  from  its  cars  at 
an  intermediate  station.  The  declaration  was  served  upon  Joseph 
Price,  the  treasurer  of  the  corporation,  who  was  only  casually  in  the 
state.  The  corporation  appeared  specially  to  object  to  the  jurisdic- 
tion of  the  court,  and  pleaded  that  it  was  a  foreign  corporation,  and 
had  no  place  of  business  or  agent  or  officer  in  the  state,  or  attorney 
to  receive  service  of  legal  process,  or  to  appear  for  it ;  and  that  Joseph 
Price  was  not  in  the  state  at  the  time  of  service  on  him  on  any  official 
business  of  the  corporation.  The  plaintiff  having  demurred  to  this 
plea  the  court  held  the  service  insufficient. 

"The  corporate  entity,"  said  the  court,  "could  by  no  possibility  enter 
the  state,  and  it  could  do  nothing  more  in  that  direction  than  to  cause 
itself  to  be  represented  here  by  its  officers  or  agents.  Such  representa- 
tion would,  however,  necessarily  imply  something  more  than  the  mere 
presence  here  of  a  person  possessing,  when  in  Canada,  the  relation  to 
the  company  of  an  officer  or  agent.  Tojnvolve  the  representation  of 
the  company  here,  the  supposed  representative  would  have  to  hold__o 
enjoy  in "fhts^sfate  an  actual  present  official  or  representative  status.^ 
He  would  be  requTred  to^be^here  as  aTTageht  or  officer  of  tli£_corpo ra- 
tion, aad-ntsf'as  an  isolat^d-Jndividual.  If  he  should  drop  the  official 
or  representative  character  at  the  frontier,  if  he  should  bring  that  char- 
acter no  further  than  the  territorial  boundary  of  the  government  to 
whose  laws  the  corporate  body  itself,  and  consequently  the  official  posi- 
tions of  its  officers  also,  would  be  constantly  indebted  for  existence,  it 
could  not,  with  propriety,  be  maintained  that  he  continued  to  possess 
such  character  by  force  of  our  statute.  Admitting,  therefore,  for  the 
purpose  of  this  suit,  that  in  given  cases  the  foreign  corporation  would 
be  bound  by  service  on  its  treasurer  in  Michigan,  this  could  only  be  so 
when  the  treasurer,  the  then  official,  the  officer  then  in  a  manner  im- 
personating the  company,  should  be  served.  Joseph  Price  was  not  here 
as  the  treasurer  of  the  defendants.  He  did  not  then  represent  them. 
His  act  in  coming  was  not  the  act  of  the  company,  nor  was  his  remain- 


J 


.^^ 


138  GENERAL  PROVISIONS.  (Part  1 

ing  the  business  or  act  of  any  besides  himself.  He  had  no  principal 
and  he  was  not  an  agent.  He  had  no  official  status  or  representative 
character  in  this  state."    Page  344. 

According  to  the  view  thus  expressed  by  the  Supreme  Court  of 
Michigan  service  upon  an  agent  of  a  foreign  corporation  will  not  be 
deemed  sufficient  unless  he  represents  the  corporation  in  the  state. 
This  representation  implies  that  the  corporation  does  business,  or  has 
business  in  the  state  for  the  transaction  of  which  it  sends  or  appoints 
an  agent  there.  \i  the  agent  occupies  no  representative  character  with 
respect  to  the  business  of  the  corporation  in  the  state,  a  judgment  ren- 
dered upon  service  on  him  would  hardly  be  considered  in  other  tribu- 
nals as  possessing  any  probative  force.  In  a  case  where  similar  service 
was  made  in  New  York" upon  an  officer  of  a  corporation  of  New  Jersey 
accidentally  in  the  former  state,  the  Supreme  Court  of  New  Jersey 
said  that  a  law  of  another  state  which  sanctioned  such  service  upon  an 
officer  accidentally  within  its  jurisdiction  was  "so  contrary  to  natural 
justice  and  to  the  principles  of  international  law  that  the  courts  of 
other  states  ought  not  to  sanction  it."  Moulin  v.  Trenton  Mut.  Life 
&  Fire  Ins.  Co.,  24  N.  J.  Law,  222,  234. 

Without  considering  whether  authorizing  service  of  a  copy  of  a 
writ  of  attachment  as  a  summons  on  some  of  the  persons  named  in 
the  statute — a  member,  for  instance,  of  the  foreign  corporation,  that 
is,  a  mere  stockholder — is  not  a  departure  from  the  principle  of 
natural  justice  mentioned  in  Lafayette  Ins.  Co.  v.  French,  which  for- 
bids condemnation  without  citation,  it  is  sufficient  to  observe  that 
we  .are  of  opijiion  that  when  service^  is  made  within  the  state  upon  an 
agent  of  a  foreign  corporation  it  is  essential,  in  order  to  support  the 
jurisdiction  oflhe  court  to  render  a  personals  judgment,  that_it  should 
appear  sdmewHereT'irr  the  record — either  in  the  application  for  the 
writ  or  accom|ranyiiig  its  service,  or  m  The  pleadings  or  th£  finding 
of  the  court^^— that  the  corpoxation  was  engaged  in  biisi»e*s4ft-tlae-state. 
The  transaction  of  business  by  the  corporation  in  the  state,  general 
or  special,  appearing,  a  certificate  of  service  by  the  proper  officer 
on  a  person  who  is  its  agent  there  would,  in  our  opinion,  be  sufficient 
prima  facie  evidence  that  the  agent  represented  the  company  in  the 
business.  It  would  then  be  open,  when  the  record  is  offered  as  evi- 
dence in  another  state,  to  show  that  the  agent  stood  in  no  representa- 
tive character  to  the  company,  that  his  duties  were  limited  to  those  of 
a  subordinate  employe,  or  to  a  particular  transaction,  or  that  his  agency 
had  ceased  when  the  matter  in  suit  arose. 

In  the  record^^  copy  o^f  which  was  offered  in  evidence  in  this  cas£, 
there  was  nothing  to  show,  so  far  as  we  can  see,  that  the  Winthrop 
Mining  Company  was  engaged  in  business  in  the  stat^when__s£rvice 
was  made  on  Corwell.  TTie  r(?t"urii  of  tTie  officer,  on  which  alone  re- 
liance was  placed  to  sustain  the  jurisdiction  of  the  state  court,  gave 
no  information  on  the  subject.  It  did  not,  therefore,  appear  even 
prima  facie  that  Colwell  stood  in  'any~such  representative  character 


Ch.    4)  JUDGMENTS.  139 

to  the  companjr  as  would  justify  tli£_^er,vLce  of  a  copy  of  the  writ  on_ 
him.  ~The-cefffficate  of  the  sheriff,  in  the  absence  of  this  fact  inJ-li£ 
record,  wa5~in sufficient  to  give  the  court  jurisdiction  to  rendeji_a._p£r- 
sonal  judgmenf  "against   the  foreign  corporation.     The  record  was, 
therefore,  properly' exdu^ed,  " 

Judgment  affirmed.^^ 


OLD  WAYNE  MUT.  LIFE  ASS'N  OF  INDIANAPOLIS  v. 
McDONOUGH. 

(Supreme  Court  of  the  United  States,  1907.    204  U.  S.  8,  27  Sup.  Ct.  230,  .j1  L. 

Ed.  345.) 

The  Old  Wayne  Mutual  Life  Association  of  Indianapolis,  incor- 
porated under  the  law  of  the  state  of  Indiana,  issued  in  that  state  a 
policy  of  insurance  upon  the  life  of  Patrick  McNally,  who,  as  well  as 
the  beneficiaries,  was  a  citizen  of  the  state  of  Pennsylvania.  The  com- 
pany did  some  business  in  Pennsylvania  which  had  no  relation,  how- 
ever, to  this  contract,  but  did  not  comply  with  the  following  statute  of 
the  state  of  Pennsylvania:  "No  insurance  company  not  of  this  state, 
nor  its  agents,  shall  do  business  in  this  state  until  it  has  filed  with  the 
insurance  commissioner  of  this  state  a  written  stipulation,  duly  au- 
thenticated by  the  company,  agreeing  that  any  legal  process  aft'ecting 
the  company,  served  on  the  insurance  commissioner,  or  the  party  desig- 
nated by  him,  or  the  agent  specified  by  the  company  to  receive  service 
of  process  for  said  company,  shall  have  the  same  effect  as  if  served  per- 
sonally on  the  company  within  this  state,  and  if  such  company  should 
cease  to  maintain  such  agent  in  this  state  so  designated  such  process 
may  thereafter  be  served  on  the  insurance  commissioner." 

Suit  was  brought  against  the  company  in  the  court  of  common  pleas 
of  Susquehanna  county,  Pa.,  upon  this  contract  of  insurance,  the  sum- 
mons being  served  on  the  commissioner  of  insurance  alone.  No  notice 
of  the  summons  appears  to  have  been  given  by  the  commissioner  to 
the  defendant;  nor  did  the  defendant  appear  in  the  action.  Judgment 
was  rendered  by  default  against  the  life  association.  The  present  suit 
is  brought  in  Indiana  upon  that  judgment."* 

Harlan,  J.^^  *  *  *  But  even  if  it  be  assumed  that  the  insurance 
company  was  engaged  in  some  business  in  Pennsylvania  at  the  time  the 
contract  in  question  was  made,  it  cannot  be  held  that  the  company 

2  3  It  has  been  held  that  the  ground  of  jurisdiction  is  not  implied  submis- 
sion, but  that  a  foreign  corporation  transacting  business  within  a  state  is 
"found"  there.  Wilson  Pacliing  Co.  v.  Hunter,  Fed.  Cas.  No.  17,852  (1879). 
In  England  a  foreign  corporation  is  regarded  as  a  resident  if  it  carries  on 
business  in  England,  however  short  the  period.  La  Compagnie  Generale,  Trans- 
atlantiaue  v.  Law,  [1899]  A.  C.  431 ;  Dunlop  Pneumatic  Tyre  Co.  v.  Actieuge- 
sellschaft,  [1902]  1  K.  B.  (C.  A.)  342. 

24  The  statement  of  facts  has  been  abstracted  from  the  opinion. 

25A  part  of  the  opinion  has  been  omitted. 


140  GENERAL  PROVISIONS.  (Part  1 

agreed  that  service  of  process  upon  the  insurance  commissioner  of 
that  commonwealth  would  alone  be  sufficient  to  bring  it  into  court  in 
respect  of  all  business  transacted  by  it,  no  matter  where,  with,  or  for 
the  benefit  of,  citizens  of  Pennsylvania,  Undoubtedly,  it  was  compe- 
tent for  Pennsylvania  to  declare  that  no  insurance  corporation  should 
transact  business  within  its  limits  without  filing  the  written  stipulation 
specified  in  its  statute.  Lafayette  Ins.  Co.  v.  French,  18  How.  404, 
15  L.  Ed.  451 ;  Paul  v.  Virginia,  8  Wall.  168,  19  L.  Ed.  357 ;  Hooper  v. 
CaHfornia,  155  U.  S.  648,  653,  15  Sup.  Ct.  207,  39  L.  Ed.  297,  300,  5 
Inters.  Com.  Rep.  610,  and  authorities  cited ;  Waters-Pierce  Oil  Co.  v. 
Texas,  177  U.  S.  28,  45,  20  Sup.  Ct.  518,  44  L.  Ed.  657,  664.  It  is 
equally  true  that,  if  an  insurance  corporation  of  another  state  trans- 
acts business  in  Pennsylvania  without  complying  with  its  provisions,  it 
will  be  deemed  to  have  assented  to  any  valid  terms  prescribed  by  that 
commonwealth  as  a  condition  of  its  right  to  do  business  there;  and 
it  will  be  estopped  to  say  that  it  had  not  done  what  it  should  have  done 
in  order  that  it  might  lawfully  enter  that  commonwealth  and  there  ex- 
ert incorporate  powers.  In  Baltimore  &  O.  R.  Co.  v.  Harris,  12  Wall. 
65,  81,^0  L.  Ed.  354,  the  question  was  as  to  the  jurisdiction  of  the 
Supreme  Court  of  the  District  of  Columbia  of  a  suit  against  a  corpora- 
tion in  Maryland,  whose  railroad  entered  the  District  with  the  consent 
of  Congress.  This  court  said:  "It  [the  corporation]  cannot  migrate, 
but  may  exercise  its  authority  in  a  foreign  territory  upon  such  con- 
ditions as  may  be  prescribed  by  the  law  of  the  place.  One  of  these  con- 
ditions may  be  that  it  shall  consent  to  be  sued  there.  If  it  does  business 
there  it  will  be  presumed  to  have  assented,  and  will  be  bound  according- 
ly." This  language  was  cited  and  approved  in  Chicago  &  N.  W.  R.  Co. 
V.  Whitton,  13  Wall.  270,  285,  20  L.  Ed.  571,  576.  The  same  ques- 
tion was  before  the  court  in  Ex  parte  Schollenberger,  96  U.  S.  369, 
376,  24  L.  Ed.  853,  854,  and  the  principle  announced  in  the  Harris  and 
Whitton  Cases  was  approved.  In  the  Schollenberger  Case  the  Pennsyl- 
vania statute  here  in  question  was  involved.  To  the  same  effect  are 
the  following  cases:  Ehrman  v.  Teutonia  Ins.  Co.  (D.  C.)  1  Fed.  471, 
1  McCrary,  123,  129 ;  Knapp,  Stout  &  Co.  v.  National  Mut.  Fire  Ins. 
Co.  (C.  C.)  30  Fed.  607;  Berry  v.  Knights  Templars'  &  Masons'  Life 
Indemnity  Co.  (C.  C.)  46  Fed.  439,  441,  442;  Diamond  Plate  Glass 
Co.  v.  Minneapolis  Mut.  Fire  Ins.  Co.  (C.  C.)  55  Fed.  27;  Stewart  v. 
Harmon  (C.  C.)  98  Fed.  190,  192. 

Conceding,  then,  that  by  going  into  Pennsylvania,  without  first  com- 
plying with  its  statute,  the  defendant  association  may  be  held  to  have 
assented  to  the  service  upon  the  insurance  commissioner  of  process  in 
a  suit  brought  against  it  there  in  respect  of  business  transacted  by  it  in 
that  commonwealth,  such  assent  cannot  properly  be  implied  where  it 
affirmatively  appears,  as  it  does  here,  that  the  business  was  not  trans- 
acted in  Pennsylvania.  Indeed,  the  Pennsylvania  statute,  upon  its  face, 
is  only  directed  against  insurance  companies  who  do  business  in  that 
commonwealth — "in  this  state."     While  the  highest  considerations  of 


Ch.   4)  JUDGMENTS.  141 

public  policy  demand  that  an  insurance  corporation,  entering  a  state^ 
in  defianr^'^ra  statute  whicjji  lawfully  prescribes  the  terms  upon  which ~ 
it  may  exertits  powers  there,  should  be  held  to  have  assented  to  such^ 
terms  aS"  to  business  there  transacted  by  it,  it  would  be  gomg  very  tar 
to  imply,  and  we  do  not  imply,  such  assent  ^s~W  business  Uansacled" 
in  anotHeFstate7althoirgTi~ciTizenrorHie  state  may_behiterested 

in  suclTbusiness. 

"As  the  suit  m  the  Pennsylvania  court  was  upon  a  contract  executed 
in  Indiana;  as  the  personal  judgment  in  that  court  against  the  Indiana 
corporation  was  only  upon  notice  to  the  insurance  commissioner,  with- 
out any  legal  notice  to  the  defendant  association,  and  without  its  hav- 
ing appeared  in  person  or  by  attorney  or  by  agent  in  the  suit ;  and 
as  the  act  of  the  Pennsylvania  court  in  rendering  the  judgment  must 
be  deemed  that  of  the  state  within  the  meaning  of  the  fourteenth 
amendment  [Ex  parte  Virginia,  100  U.  S.  339,  346,  347,  25  L.  Ed. 
676-680  (1880);  Neal  v.  Delaware,  103  U.  S.  370,  26  L.  Ed.  567 
(1881) ;  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L. 
Ed.  220  (1885);  Gibson  v.  Mississippi,  162  U.  S.  565,  16  Sup.  Ct. 
904,  40  L.  Ed.  1075  (1896);  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166 
U.  S.  226,  233,  234,  17  Sup.  Ct.  581,  41  L.  Ed.  979  (1897)]— we  hold 
that  the  judgment  in  Pennsylvania  was  not  entitled  to  the  faith  and 
credit  which,  by  the  Constitution,  is  required  to  be  given  to  the  public 
acts,  records,  and  judicial  proceedings  of  the  several  states,  and  was 
void  as  wanting  in  due  process  of  law. 

The  judgment  of  the  Supreme  Court  of  Indiana  must,  therefore,  be 
reversed,  with  directions  for  further  proceedings  not  inconsistent  with 
this  opinion. 

It  is  so  ordered.^'^ 

2  7  With  respect  to  jurisdiction  over  foreign  corporations,  see,  in  general, 
8.5  Am.  St.  Rep.  905-938 ;  50  L.  R.  A.  589-597 ;  19  Cyc.  1338-1.344.  As  to  juris- 
diction over  suits  between  nonresidents  and  foreign  corporations,  see  70  L.  R. 

A.  513-544.  See.  also,  21  Harv.  Law  Rev.  453,  and  W.  A.  C.  Coutts,  The  Con- 
stitutionality of  Statutes  Authorizing  Subservice  of  Process  upon  Corpora- 
tions, 6G  Central  Law  Journal,  109-124. 

In  New  York  service  upon  a  foreign  corporation  which  has  not  transacted 
business  within  the  local  jurisdiction  has  been  held  valid  within  the  state. 
Pope  V.  Terre  Haute  Car  &  Mfg.  Co.,  87  N.  Y.  137  (ISSl).  Compare  Grant 
V.  Cananea  Consol.  Copper  Co.,  189  N.  Y.  241,  82  N.  E.  191  (1907).  But  such 
service  will  not  be  sufficient  upon  the  removal  of  the  cause  to  the  federal 
courts.  Goldey  v.  Morning  News,  156  U.  S.  518,  15  Sup.  Ct.  559,  39  L.  Ed.  517 
(1895).  Nor  will  service  upon  a  foreign  corporation  be  sufficient  after  it  has 
ceased  to  do  business  within  the  jurisdiction.  Conley  v.  Mathieson  Alkali 
Works,  190  U.  S.  406,  23  Sup.  Ct.  728,  47  L.  Ed.  1113  (1903)  ;  Swann  v.  Mutu- 
al Reserve  Fund  Life  Ass'n  (C.  C.)  100  Fed.  922  (1900).  It  has  been  sustain- 
ed, however,  as  to  causes  of  action  arising  within  the  state  while  the  foreign 
corporation  was  doing  business  within  such  state.  Ben  Franklin  Ins.  Co.  v. 
Gillett,  54  Md.  212  (1880)  ;  Collier  v.  Mutual  Reserve  Fund  Life  Ass'n  (C. 
C.)  119  Fed.  617  (1902).  The  mere  possession  of  property  does  not  confer 
jurisdiction  over  the  foreign  corporation  upon  a  personal  cause  of  action.  Ter- 
ritory of  New  Mexico  v.  Baker,  196  U.  S.  432,  25  Sup.  Ct.  375,  49  L.  Ed.  540 
(1905). 

As  to  what  constitutes  "doing  business,"  see  Pennsylvania  Lumbermen's 
Mut,  Fire  Ins.  Co.  v.  Meyer,  197  U.  S.  407,  25  Sup.  Ct.  483,  49  L.  Ed.  810 


/ 


142  GENERAL  PROVISIONS.  (Part  1 

CHRISTMAS  V.  RU^SELU 
(Supreme  Court  of  the  United  States,  18G6.     5  Wall.  290,  18  L.  Ed.  475.) 

Clifford,  J.^^  Wilson,  on  the  11th  day  of  November,  1857,  re- 
covered judgment  in  one  of  the  county  courts  in  the  state  of  Kentucky, 
against  the  plaintiff  in  error,  for  the  sum  of  five  thousand  six  hundred 
and  thirty-four  dollars  and  thirteen  cents,  which,  on  the  31st  day  of 
March,  1859,  was  affirmed  in  the  Court  of  Appeals.  Present  record 
shows  that  the  action  in  that  case  was  assumpsit,  and  that  it  was 
founded  upon  a  certain  promissory  note,  signed  by  the  defendant  in 
that  suit,  and  dated  at  Vicksburg,  in  the  state  of  Mississippi,  on  the 
10th  day  of  March,  1840,  and  that  it  was  payable  at  the  Merchants' 
Bank,  in  New  Orleans,  and  was  duly  indorsed  to  the  plaintiff  by  the 
payee.  Process  was  duly  served  upon  the  defendant,  and  he  appeared 
in  the  case  and  pleaded  to  the  declaration.  Several  defences  were  set 
up,  but  they  were  all  finally  overruled,  and  the  verdict  and  judgment 
were  for  the  plaintiff. 

On  the  4th  day  of  June,  1854,  the  prevailing  party  in  that  suit  in- 
stituted the  present  suit  in  the  court  below,  which  was  an  action  of 
debt  on  that  judgment,  as  appears  by  the  transcript.  Defendant  was 
duly  served  with  process,  and  appeared  and  filed  six  pleas  in  answer 
to  the  action.  Reference,  however,  need  only  be  particularly  made  to 
the  second  and  fourth,  as  they  embody  the  material  questions  present- 
ed for  decision.  Substance  and  effect  of  the  second  plea  were  that 
the  note,  at  the  commencement  of  the  suit  in  Kentucky,  was  barred  by 
the  statute  of  limitations  of  Alississippi,  the  defendant  having  been  a 
domiciled  citizen  of  that  state  when  the  cause  of  action  accrued,  and 
from  that  time  to  the  commencement  of  the  suit. 

Fourth  plea  alleges  that  the  judgment  mentioned  in  the  declaration 
was  procured  by  the  fraud  of  the  plaintiff  in  that  suit.  Plaintiff  de- 
murred to  these  pleas,  as  well  as  to  the  fifth  and  sixth,  and  the  court 
sustained  the  demurrers.    *    *    * 

4.  Cases  may  be  found  in  which  it  is  held  that  the  judgment  of  a 
state  court,  when  introduced  as  evidence  in  the  tribunals  of  another 
state,  are  to  be  regarded  in  all  respects  as  domestic  judgments.  On 
the  other  hand,  another  class  of  cases  might  be  cited  in  which  it  is 
held  that  such  judgments  in  the  courts  of  another  state  are  foreign 
judgments,  and  that  as  such  the  judgment  is  open  to  e.very  inquiry  to 
which  other  foreign  judgments  may  be  subjected  under  the  rules  of  the 
common  law.  Neither  class  of  these  decisions  is  quite  correct.  They 
certainly  are  not  foreign  judgments  under  the   Constitution    (article 

(1905);  Peterson  v.  Chicago,  R.  1.  &  P.  R.  Co.,  205  U.  S.  3G4,  27  Sup.  Ct.  513, 
51  L.  Ed.  841  (1907);  A.  Booth  &  Co.  v.  Weigand,  30  Utah.  135,  S3  Pac.  734, 
10  L.  R.  A.  (N.  S.)  693  (190G)  ;  W.  H.  Lutes  Co.  v.  Wysong,  100  Minn.  112. 
110  N.  W.  3G7  (1907).  But  compare  John  Deere  Plough  Co.  v.  Wyland,  69 
Kan.  255,  70  Pac.  8G3  (1904). 

2  8  Only  so  much  of  the  opinion  is  given  as  relates  to  the  defense  of  fraud. 


Ch.    4)  JUDGMENTS.  143 

4,  §  1)  and  laws  of  Congress  (Act  May  26,  ITOO,  c.  11,  1  Stat.  122)  in 
any  proper  sense,  because  they  "shall  have  such  faith  and  credit  given 
to  them  in  every  other  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  of  the  state  from  whence"  they  were  taken, 
nor  are  they  domestic  judgments  in  every  sense,  because  they  are  not 
the  proper  foundation  of  final  process,  except  in  the  state  where  they 
were  rendered.  Besides,  they  are__op£Ji  to  inquiry  as  to  the  jurisdictimi. 
of  the  rnnrf^rid  prAJr^  tn  tlip  r1pfpndan<';  hnf  in  nil  ntlier  rpspprt^;  they 

have  the  same  faith  and  credit  as  domestic  judgmerits.  D'Arcy  v. 
Ketchum,  inJowTieS,  13  L.  Ed.  648;  Webster  v.  Reid,  11  How. 
437,  13  L.  Ed.  761. 

Subject  to  those  qualifications,  the  judgment  of  a  state  court  is  con- 
clusive in  the  courts  of  all  the  other  states  wherever  the  same  matter 
is  brought  in  controversy.  Established  rule  is,  that  so  long  as  the 
judgment  remains  in  force  it  is  of  itself  conclusive  of  the  right  of  the 
plaintiff  to  the  thing  adjudged  in  his  favor,  and  gives  him  a  right  to 
process,  mesne  or  final,  as  the  case  may  be,  to  execute  the  judgment. 
Voorhees  v.  Jackson,  10  Pet.  449,  9  L.  Ed.  490 ;  Huff  v.  Hutchinson, 
14  How.  588,  14  L.  Ed.  553. 

5.  Exactly  the  same  point  was  decided  in  the  case  of  Benton  v.  Bur- 
got,  10  Serg.  &  R.  (Pa.)  240,  which,  in  all  respects,  was  substantially 
like  the  present  case.  The  action  was  debt  on  judgment  recovered  in 
a  court  of  another  state,  and  the  defendant  appeared  and  pleaded  nil 
debet,  and  that  the  judgment  was  obtained  by  fraud,  imposition,  and 
mistake,  and  without  consideration.  Plaintiff  demurred  to  those  pleas, 
and  the  court  of  original  jurisdiction  gave  judgment  for  the  defend- 
ant. Whereupon  the  plaintiff  brought  error,  and  the  Supreme  Court 
of  the  state,  after  full  argument,  reversed  the  judgment  and  directed 
judgment  for  the  plaintiff.  Domestic  judgments,  say  the  Supreme 
Court  of  Maine,  even  if  fraudulently  obtained,  must  nevertheless  be 
considered  as  conclusive  until  reversed  or  set  aside.  Granger  v.  Clark, 
22  j\Ie.  130.  Settled  rule,  also,  in  the  Supreme  Court  of  Ohio,  is  that 
the  judgment  of  another  state,  rendered  in  a  case  in  which  the  court 
had  jurisdiction,  has  all  the  force  in  that  state  of  a  domestic  judgment, 
and  that  the  plea  of  fraud  is  not  available  as  an  answer  to  an  action 
on  the  judgment.  Express  decision  of  the  court  is,  that  such  a  judg- 
ment can  only  be  impeached  by  a  direct  proceeding  in  chancery.  An- 
derson v.  Anderson,  8  Ohio,  108. 

Similar  decisions  have  been  made  in  the  Supreme  Court  of  Massa- 
chusetts, and  it  is  there  held  that  a  party  to  a  judgment  cannot  be  per- 
mitted in  equity,  any  more  than  at  law,  collaterally  to  impeach  it  on 
the  grouna  of  mistake  or  fraud,  when  it  is  oft'ered  in  evidence  against 
him  in  support  of  the  title  which  was  in  issue  in  the  cause  in  which 
it  was  recovered.  Boston  &  W.  R.  Corp.  v.  Sparhawk,  1  Allen 
(Mass.)  448,  79  Am.  Dec.  750;  Homer  v.  Fish,  1  Pick.  (Mass.)  435, 
11  Am.  Dec.  218.  Whole  current  of  decisions  upon  the  subject  in 
that  state  seems  to  recognize  the  principle  that  when  a  cause  of  action 


144  GENERAL  PROVISIONS.  (Part   1 

has  been  instituted  in  a  proper  forum,  where  all  matters  of  (Jefence 
were  open  to  the  party  sued,  the  judgment  is  conclusive  until  reversed 
by  a  superior  court  having  jurisdiction  of  the  cause,  or  until  the  same 
is  set  aside  by  a  direct  proceeding  in  chancery.  McRae  v.  Mattoon, 
13  Pick.  (Mass.)  57.  State  judgments,  in  courts  of  competent  juris- 
diction, are  also  held  by  the  Supreme  Court  of  Vermont  to  be  conclu- 
sive as  between  the  parties  until  the  same  are  reversed  or  in  some  man- 
ner set  aside  and  annulled.  Strangers,  say  the  court,  may  show  that 
they  were  collusive  or  fraudulent;  but  they  bind  parties  and  privies. 
Atkinson  v.  Allen,  12  Vt.  624,  36  Am.  Dec. '361.  Redfield,  C.  J.,  said, 
in  the  case  of  Hammond  v.  Wilder,  25  Vt.  346,  that  there  was  no  case 
in  which  the  judgment  of  a  court  of  record  of  general  jurisdiction 
had  been  held  void,  unless  for  a  defect  of  jurisdiction.  Less  uniformi- 
ty exists  in  the  reported  decisions  upon  the  subject  in  the  courts  of 
New  York,  but  all  those  of  recent  date  are  to  the  same  effect.  Take, 
for  example,  the  case  of  Embury  v.  Conner,  3  N.  Y.  522,  53  Am.  Dec. 
325,  and  it  is  clear  that  the  same  doctrine  is  acknowledged  and  en- 
forced. Indeed,  the  court,  in  effect,  say  that  the  rule  is  undeniable 
that  the  judgment  or  decree  of  a  court  possessing  competent  jurisdic- 
tion is  final,  not  only  as  to  the  subject  thereby  determined,  but  as  to 
every  other  matter  which  the  parties  might  have  litigated  in  the  cause, 
and  which  they  might  have  had  decided.  Dobson  v.'Pearce,  12  N. 
Y.  156,  62  Am.  Dec.  152.  Same  rule  prevails  in  the  courts  of  New 
Hampshire,  Rhode  Island,  and  Connecticut,  and  in  most  of  the  other 
states.  Holhster  v.  Abbott,  11  Foster  (N.  H.)  448,  64  Am.  Dec.  342; 
Rathbone  v.  Terry,  1  R.  I.  77 ;  Topp  v.  Branch  Bank  of  Alabama,  2 
Swan  (Tenn.)  188;  Wall  v.  Wall,  28  Miss.  413. 

For  these  reasons  our  conclusion  is,  that  the  fourth  plea  of  the  de- 
fendant is  bad  upon  general  demurrer,  and  that  there  is  no  error  in  the 
record.  The  judgment  of  the  Circuit  Court  is,  therefore  affirmed 
with  costs. 


/ 


WARRINGTON  v.  BALL. 
(Circuit  Court  of  Appeals,  Third  Circuit,  189S.     90  Fed.  464,  33  C.  C.  A.  609.) 

This  was  an  action  by  William  E.  Ball  against  Anna  M.  Warrington, 
a  citizen  of  Pennsylvania,  to  enforce  an  alleged  liability  of  defendant  as 
a  stockholder  in  a  Kansas  corporation.  The  circuit  court  held  the  af- 
fidavit of  defense  insufficient,  and  rendered  judgment  for  plaintiff,  from 
which  defendant  brings  error. 

Butler^  District  Judge.  The  suit  is  founded  on  a  judgment  obtain- 
ed in  Kansas,  against  the  Kansas  SarvlTig'~fiaiik7-charte'red  Tinder  the 
laws  of  that  state,  and  located  there.  The  Constitution  of  Kansas 
(article  12,  §  2),  provides  that  "dues  from  corporations  shall  be  secured 
by  individual  liability  of  stockholders,  to  an  additional  amount  equal 
to  the  stock  owned  by  each  stockholder,"  and  a  statute  of  the  state 


Ch.   4)  JUDGMENTS.  145 

(Gen.  St.  1889,  par.  1192)  provides  (when  a  creditor  has  obtained 
judgment  against  the  corporation)  as  follows: 

"If  execution  shall  have  been  issued  against  the  property  or  effects 
of  a  corporation,  except  a  railway  or  a  religious  or  charitable  corpo- 
ration, and  there  cannot  be  found  any  property  whereon  to  levy  such 
execution,  then  execution  may  be  issued  against  any  of  the  stockhold- 
ers, to  an  extent  equal  in  amount  to  the  amount  of  stock  by  him  or 
her  owned,  together  with  any  amount  unpaid  thereon ;  but  no  execu- 
tion shall  issue  against  any  stockholder,  except  upon  an  order  of  the 
court  in  which  the  action,  suit,  or  other  proceeding  shall  have  been 
brought  or  instituted,  made  upon  motion  in  open  court,  after  reason- 
able notice  in  writing  to  the  person  or  persons  sought  to  be  charged, 
and  upon  such  motion,  such  court  may  order  execution  to  issue  accord- 
ingly; or  the  plaintiff  in  the  execution  may  proceed  by  action  to 
charge  the  stockholders  with  the  amount  of  his  judgment." 

Several  defenses  .are  set  up  one  of  which  is  that  the  judgment  sued 
upon  is^  fraudulent ;  the  allegation  "^bemg^  substantiatty,  that'it  was  ob- 
tained^ByjcoIlusion  between  the  plaintiff  and  the  representatives  of  the 
bank ;  that  the  bank  was  not  indebted  to  the  plaintiff,  the  certificate  of 
deposit  on  which  he  sued  having  been  issued  for  money  furnished  to 
the  cashier  personally;  and  that  the  object  of  the  collusion  wasjo  avoid 
a  defense,  enable  the  plaintiff  to  obtain  judgment  by  default,  and  pur- 
sue the  defendant  and  other  stockholders.  The  Circuit  Court  entered 
judgment  for  the  plaintiff — holding  the  affidavit  of  defense  to  be  insuf- 
ficient. 

It  is  not  necessary  to  examine  the  several  defenses  averred.  If  one 
of  them  is  sufficient  the  judgment  must  be  reversed,  and  the  case  sent 
back  for  trial.'  If  questions  shall  thereafter  exist  respecting  others, 
the}^  may  be  considered  in  the  light  of  the  facts,  ascertained  by  the  trial. 
We  think  the  judgment  was  erroneously  entered.  If  the  averment  of 
fraud  was  confined  to  the  certificate  of  deposit,  as  the  learned  judge  of 
the  Circuit  Court  seems  to  have  believed,  a  different  question  would  be 
presented.  The  right  to  sue  is,  in  terms,  based  on  the  judgment  against 
the  corporation ;  and  these  terms  having  received  a  literal  interpretation 
by  the  Supreme  Court  of  Kansas,  in  Ball  v.  Reese,  58  Kan.  614,  50  Pac. 
875,  62  Am.  St.  Rep.  638,  we  must  follow  it,  and  treat  the  judgment 
alone,  as  the  foundation  of  the  suit.  The  fraud  averred,  however, 
as  we  have  seen,  involves  the  judgment  itself.~^hat  it  constitutes  a 
valid  defense  we  cannot  doubt.  Fraud,  generally,  vitiates  wbatevjer 
it  touches — whether  a  contract,  a  deed,  or  aTecord.  It  is  unnecessary 
to  consider  questions  presented  by  such  a  defense  when  set  up  to  suits 
on  foreign  judgments,  against  the  defendant  therein.  The  only  ques- 
tion before  us  arises  under  the  clause  of  the  Constitution  of  the  United 
States  which  provides  that  "full  faith  and  credit  shall  be  given  in  each 
state  to  public  acts,  records,  and  judicial  proceedings  of  every  other 
state."  This  judgment  must  be  given  the  same  credit  here  that  it  is 
entitled  to  in  Kansas.     What  credit  is  it  entitled  to  there?     In  the  ab- 

LOB.CONF.L.— 10 


146  GENERAL  PROVISIONS.  (Part  1 

sence  of  decisionJ)y  the  supreme  court  of  that  state,  the  question  might 
possibly  present  dififiicuhies.  'We  do  not  doubt  however  thafwe "woulcl 
hold  it  liable  to  invalidation  by  proof  of  the  fraud  here  averred.  Any 
other  view  would  render  the  statutory  remedy  against  stockholders  too 
inequitable  to  justify  its  enforcement  outside  the  state.  Indeed  the 
courts  of  many  of  the  states  have  declined  to  enforce  it  under  any  cir- 
cumstances. See  Gushing  v.  Perot,  175  Pa.  66,  34  Atl.  447,  34  L.  R. 
A.  737,  52  Am.  St.  Rep.  835 ;  Marshall  v.  Sherman,  148  N.  Y.  9,  42  N. 
E.  419,  34  L.  R.  A.  757,  51  Am.  St.  Rep.  G54 ;  Fowler  v.  Lamson,  146 
111.  472,  34  N.  E.  932,  37  Am.  St.  Rep.  163 ;  Tuttle  v.  National  Bank  of 
Republic,  161  111.  497,  44  N.  E.  984,  34  L.  R.  A.  750.  To  bind_one  by 
a  judgment  to  which  he  is  not  a  party,  as  provided  for  hy^ie  statute, 
is  barely  tolerable.  To  bind  him  by  such  ji_judgment_^btam  by 
fraudulent  collusion  (as  here  averfed:)'"would  be  intolerable.  We~are" 
saved  the  necessity,  however,  of  consideringThe  subject  by  the  decision 
in  Ball  v  Reese,  supra.  The  credit  to  which  such  judgments  are  en- 
titled in  Kansas,  was  there  directly  involved ;  and  while  the  court  (con- 
trary to  its  former  declarations)  held  the  judgment  to  be  conclusive  of 
all  questions  except  fraud  and  want  of  jurisdiction,  it  as  distinctly  held 
that  it  may  be  impeached  and  avoided  for  these  causes.  The  court 
is  emphatic  in  so  declaring;  and  places  fraud  and  want  of  jurisdiction 
in  the  same  category.  This  determination  of  the  question  is  conclu- 
sive. There  is  no,  force  Jrj_the..cDiiteiition  that  the  impeachnTentcannot 
be._2nade  collaterally.  The  court  in  Ball  v.  Reese  distinctly  says  it 
can,  and  cites  the  fohowing  language  from  3  Thomp.  Corp.  p.  392,  §  3 : 
"Although  stockholders  cannot  appear  and  contest  the  merits  of  the 
action  against  the  corporation,  'yet  when  a  judgment  is  rendered 
against  the  corporation  it  establishes  as  conclusively  as  any  judgment 
can  establish  the  matter  in  litigation,  the  liability  of  the  corporation 
to  pay  the  debt.  Like  any  judgment,  it  may  be  impeached-ior  fraud 
or  for  want  of  jurisdiction  by  a  party  entitled  to  question  itj_bu-t  ^^ 
cannot  be^assailed  collaterally  by  a  stockholder  for  any  othjr_cause 
when  sought  to  be  charged  in  respect  of  it.'  " 

The  defendant  cannot  indeed  impeach  the  judgment  in  any  other 
way  than  collaterally.  She  is  not  a  party  to  it ;  and  it  is  valid  as  be- 
tween the  plaintiff  and  the  bank,  so  long  as  the  latter  acquiesces.  She 
could  not  therefore  be  heard  in  an  application  to  open  it.  A  proceed- 
ing in  equity  to  declare  it  void  as  to  her,  would  be  as  clearly  a  collateral 
impeachment  as  that  here  proposed.  The  suggestion  that  she  should 
go  to  Kansas  to  seek  equitable  aid,  has  no  support  in  reason  or  au- 
thority. She  might  have  such  aid  wherever  the  plaintiff  is  found. 
Having  come  here  and  sought  the  assistance  of  our  courts  to  enforce  the 
judgment,  she  might  appeal  to  equity  here  against  the  consequences 
of  the  fraud,  as  eft'ectually  as  she  could  in  Kansas.  She  is  not  re- 
quired however  to  seek  the  protection  of  equity  anywhere.  Fraud  is 
an  available  defense  at  law,  and  she  may  therefore  set  it  up  in  answer 
to  the  suit. 
The  judgment  must  be  reversed. 


Ch.   4)  JUDGMENTS.  147 

LEVIN  V.  GLADSTEIN. 

(Supreme  Court  of  North  Carolina,  1906.    142  N.  C.  482,  55  S.  E.  371,  115  Am. 

St.  Rep.  747.) 

This  was  a  suit  upon  a  judgment  obtained  in  the  superior  court 
of  Baltimore  City,  Md.  Personal  service  was  had  upon  defendant 
while  in  Baltimore.  Action  was  instituted  upon  said  judgment  be- 
fore a  justice  of  the  peace  of  Durham  county,  and  from  a  judgment 
therein  defendant  appealed  to  the  superior  court.  At  the  beginning 
of  the  trial  in  the  superior  court  counsel  for  defendant  stated  he 
admitted  the  regularity  of  the  judgment  sued  upon,  and  withdrew  all 
pleas  and  defenses  to  said  action,  save  and  except  that  the  judgment 
upon  which  the  action  was  brought  was  procured  by  a  fraud  prac- 
ticed by  plaintiffs  upon  the  defendant,  and  that  he  insisted  upon  that 
plea  alone.  Thereupon  the  plaintiffs  moved  for  judgment  for  that 
the  judgment  rendered  by  the  court  of  Maryland  was  not  open  to  at- 
tack in  this  action  for  fraud.  Motion  overruled,  and  plaintiffs  except- 
ed. His  honor  held  that  the  burden  of  proof  was  upon  the  deferidant, 
and  he  proceeded  to  introduce  testimony.  Mr.  Gladstein  testified  that 
he  was  the  defendant  in  the  case ;  that  he  knew  Philip  Levin  and  Simon 
Levin,  and  had  bought  goods  of  them;  that  some  time  prior  to  his 
going  to  Baltimore  he  bought  a  bill  of  goods  of  plaintiffs,  but  had 
shipped  some  of  them  back  to  Baltimore  because  they  were  not  up  to 
the  sample;  that  plaintiffs  had  refused  to  take  the  goods  out  of  the 
depot  in  Baltimore;  that  upon  his  visit  to  Baltimore,  summons  was  serv- 
ed upon  him  in  the  action  brought  there  by  the  plaintiffs,  but  after  said 
summons  was  served  upon  him,  and  before  the  return  day,  he  saw  one 
of  the  plaintiffs  and  had  an  interview  with  him  at  the  store  of  L. 
Singer  &  Son,  during  which  interview  plaintiffs  agreed  with  him  to 
withdraw  said  suit  and  return  the  goods  to  him  at  Durham,  provided 
he  would,  upon  their  receipt,  pay  the  plaintiffs  a  sum  of  money,  which 
they  agreed  upon,  to  wit,  $133,  and  freight  and  storage  not  to  exceed 
$3 ;  that  relying  upon  this  agreement  he  returned  to  Durham,  and  made 
no  defense  to  the  action ;  that  plaintiffs  never  returned  the  goods  to 
him  at  Durham;  that  the  first  time  he  knew  of  the  judgment  was 
when  called  upon  by  attorneys  for  plaintiffs  to  pay  said  judgment. 
There  was  testimony  contradicting  defendant.  After  hearing  testi- 
mony from  both  parties,  the  court  submitted  the  following  issue  to 
the  jury:  "Was  the  alleged  judgment  rendered  for  $143,  bearing  date 
April  27,  1904,  in  the  superior  court  of  Baltimore  City,  in  favor  of 
Philip  Levin  and  Simon  Levin,  copartners,  trading  as  P.  Levin  &  Co., 
against  M.  Gladstein,  obtained  by  the  fraud  of  plaintiffs  ?"  To  which 
the  jury  responded  "Yes."  Judgment  was  thereupon  rendered  that  the 
plaintiffs  take  nothing  by  their  action,  and  that  the  defendant  go  with- 
out day,  etc.     Plaintiffs  excepted  and  appealed. 

Connor,  J.     Two  questions  are  presented  upon  the  plaintiff's'  appeal: 


148  GENERAL  PROVISIONS.  (Part  1 

First.  Can  the  defendant,  in  the  manner  proposed  herem,  resist_a_re- 
covery  upon  the  judgment  rendered  against  him  by  the  Maryland  court? 
Second.  If  so,  has  the  justice  of  the  peace  jurisdiction  to  heat-ajKL 
determine  such  defense?  The  plaintiffs,  relying  upon  the  provision  of 
the  Constitution  of  the  United  States  (article  4,  §  1)  that  "full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts,  records  and 
judicial  proceedings  of  every  other  state,"  earnestly  contend  that  the 
defense  is  not  open  to  the  courts  of  this  state ;  that  the  remedy  for  the 
fraud  in  procuring  the  judgment,  if  any,  must  be  sought  in  the  courts 
of  Maryland.  The  well-considered  brief  of  plaintiffs'  counsel  thus 
states  the  question  involved  in  the  appeal :  "The  case  presents  the 
question  of  the  right  of  a  defendant  to  avail  himself  of  the  plea  of 
fraud  as  a  defense  to  an  action  in  one  state  based  upon  a  judgment 
obtained  in  a  sister  state."  When  a  judgment  rendered  by  the  court 
of  one  state  becomes  the  cause  of  action  in  the  court  of  another  state, 
and  the  transcript,  as  made  in  such  state,  duly  certified,  as  prescribed  by 
the  act  of  Congress,  is  produced,  it  imports  verity,  and  can  be  attacked 
for  only  one  purpose.  The  defendant  may  deny  that  the  court  had  ju- 
risdiction of  his  person  or  of  the  subject-matter,  and  for  this  purpose 
may  attack  the  recitals  in  the  record.  Bailey  on  Jurisdiction,  §§  198, 
199.  Jurisdiction  will  be  presumed  until  the  contrary  is  shown.  If  not 
denied,  or  when  established  after  denial,  defendant  cannot  interpose  the 
plea  of  nil  debet.  This  was  held  in  Mills  v.  Duryee,  7  Cranch  (U.  S-X. 
480,  3  L.  Ed.  411,  and  has  been  uniformly  followed  by  both  state  and 
federal  courts.  2  Am.  Lead.  Cases,  538.  In  Christmas_v^Russell,  72_ 
U.  S.  290,  18  h.  Ed.  475,  Mr.  Justice  Cliffor37aiHT'~^^Substance  of  thT 
second  objection  of  the  present  defendant  to  the  fourth  plea  is  that, 
inasmuch  as  the  judgment  is  conclusive  between  the  parties  in  the 
state  where  it  was  rendered,  it  is  equally  so  in  every  other  court  in  the 
United  States,  and  consequently  that  the  plea  of  fraud  in  procuring 
the  judgment  is  not  a  legal  answer  to  the  declaration.  Principal  ques- 
tion in  the  case  of  Mills  v.  Duryee  was  whether  nil  debet  was  a  good 
plea  to  an  action  founded  on  a  judgment  of  another  state.  Much  con- 
sideration was  given  to  the  case,  and  the  decision  was  that  the  record 
of  a  state  court  duly  authenticated  under  the  act  of  Congress  must 
have  in  every  other  court  of  the  United  States  such  faith  and  credit  as  it 
had  in  the  state  court  from  whence  it  was  taken,  and  that  nil  debet 
was  not  a  good  plea  to  such  an  action."  The  learned  justice  proceeds 
to  say:  "Domestic  judgment,  under  the  rules  of  the  common  law,  could 
not  be  collaterally  impeached  or  called  in  question  if  rendered  in  a 
court  of  competent  jurisdiction.  It  could  only  be  done  directly  by 
writ  of  error,  petition  for  new  trial  or  by  bill  in  chancery."  It  will  be 
found  upon  careful  examination  of  Hanley  v.  Donoghue,  116  U.  S.  1,  6 
Sup.  Ct.  242,  29  L.  Ed.  535  (Id.,  59  Md.  239,  43  Am.  Rep.  554),  that 
the  question  under  consideration  here  was  not  involved.  It  is  true 
that  in  the  discussion  Mr.  Justice  Gray  uses  the  language  cited  by 
counsel  which  excludes  the  right  of  the  defendant  to  impeach  the  judg- 


Ch.    4)  JUDGMENTS.  149 

meat  "for  fraud  in  obtaining  it."  So,  in  Cole  v.  Cunnin^t^ham,  133  U. 
S.  107,  10  Sup.  Ct.  269,  33  L.  Ed.  538,  Chief  Justice  Fuller,  after  quot- 
ing the  language  of  the  Constitution,  says:  "This  does  not  prevent 
an  inquiry  into  the  jurisdiction  of  the  court  in  which  judgment  is  ren- 
dered, to  pronounce  the  judgment,  nor  into  the  right  of  the  state  to 
exercise  authority  over  the  parties  or  the  subject-matter,  nor  whether 
the  judgment  is  founded  in  and  impeachable  for  a  manifest  fraud. 
The  Constitution  did  not  mean  to  confer  any  new  power  on  the  states, 
but  simply  to  regulate  the  effect  of  their  acknowledged  jurisdiction  over 
persons  and  things  within  their  admitted  territory."  The  learned  Chief 
Justice  relies  upon  the  same  line  of  cases  cited  by  Judge  Gray.  Neither 
of  them  was  discussing  the  question  here  presented,  nor  was  it  pre- 
sented by  the  record  in  those  cases.  The  case  of  Dobson  v.  Pearce, 
12  N.  Y.  156,  62  Am.  Dec.  152,  was  cited  in  Cole  v.  Cunningham, 
and  as  we  shall  see  later,  was  approved.  In  Maxwell  v.  Stewart,  89 
U.  S.  77,  22  L.  Ed.  564,  the  court  simply  reiterated  the  doctrine  an- 
nounced in  Mills  V.  Duryee,  supra,  that  the  plea  of  nil  debet  could 
not  be  interposed  in  an  action  upon  a  judgment.  Bissell  v.  Briggs, 
9  Mass.  462,  6  x\m.  Dec.  88 ;  Bailey  on  Jurisdiction,  191-192.  This 
court,  in  Miller  v.  Leach,  95  N.  C.  229,  by  Ashe,  J.,  said  that  the 
judgment  of  a  sister  state  was  put  by  the  Constitution  upon  the  same 
footing  as  domestic  judgments  precluding  all  inquiry  into  the  merits 
of  the  subject-matter,  "but  leaving  the  questions  of  jurisdiction,  fraud 
in  the  procurement,  and  whether  the  parties  were  properly  before  the 
court,  open  to  objection" — citing  Mills  v.  Duryee,  supra.  See,  also, 
Coleman  v.  Howell,  131  N.  C.  125,  42  S.  E.  555.  It  is  elementary 
learning  that  this  plea  was  not  proper  in  actions  founded  upon  a 
specialty  or  a  record.  Shipman,  Com.  Law  PI.  196.  But,  if  plaintiff, 
in  an  action  on  a  record,  instead  of  demurring  to  the  plea,  actepts  it 
and  joins  issue,  the  defendant  is  at  liberty  to  prove  any  and  every 
special  matter  of  defense  which  might  be  proved  under  the  same  plea 
in  debt.  For  the  plaintiff,  by  accepting  the  plea,  founds  his  demand 
solely  upon  the  defendant  being  indebted  and  thus  waives  the  estop- 
pel, or  conclusive  evidence  of  the  fact,  etc.  Overman  v.  Clemmons, 
19  N.  C.  185;  Gould's  PI.  287.  Hence  we  find  that  in  all  of  the 
cases  in  which  the  plea  of  nil  debet  was  entered,  the  defendant  de- 
murred, and  the  decision  was  on  the  demurrer,  which  was  uniform- 
ly sustained.  Mills  v.  Duryee,  supra ;  Maxwell  v.  Stewart,  supra  ;  Ben- 
ton v.  Burgot,  10  Serg.  &  R.  (Pa.)  240 ;  Carter  v.  Wilson,  18  N.  C.  362  ; 
Knight  V.  Wall,  19  N.  C.  125.  In  Allison  v.  Chapman  (C.  C.)  19  Fed. 
488,  Nixon,  J.,  says:  "The  subject  is  fully  discussed  h--  *  *  ^y^^^] 
the  conclusion  is  rer.rhed  that  the  allegation  in  a  plea  that  a  judgment 
was  procured  thfougli  fraud  is  not  a  good  common-law  defense  to  a  suit 
brought  upon  it  in  the  same  or  a  sister  state."  This  conclusion  is  fully 
supported  T)y  all  of  the  authorities,  and  in  this  we  concur  with  the 
learned  counsel  for  the  plaintiff.  Notwithstanding  the  well-settled  rule 
that  the  judgment,  when  sued  upon  in  another  state',''cannot  be'impeach- 


150  GENERAL  PROVISIONS.  (Part  1 

ed  or  attacked  for  fraud  by  any  plea  known  to  the  common-law  sys- 
tem of  pleading,  it  is  equally  clear  that  upon  sufficient  allegation  and^ 
proof  defendant  is  entitled,  in  a  court  of  equity,  to  enjoin  the  plaintiff 
from  suing  upon  or  enforcing  his  judgment. 

[The  learned  justice  here  recited  extracts  from  Pearce  v.  Olney,  20 
Conn.  544,  Davis  v.  Headley,  22  N.  J.  Eq.  123,  and  Payne  v.  O'Shea, 
84  Mo.  129.] 

Nor  does  the  constitutional  provision  stand  in  the  way  of  such  pro- 
ceeding. Usually,  the  power  of  a  court  of  equity  to  interfere  in  the 
enforcement  of  judgments  obtained  by  fraud,  is  invoked  to  restrain  the 
plaintiff,  in  such  judgments,  from  issuing  or  enforcing  execution.  The 
theory  was,  as  we  have  seen,  that  the  court  of  equity  did  not  call  into 
question  the  integrity  of  the  judgment,  but  by  its  decree  operated  in  per- 
sonam upon  the  plaintiff,  enforcing  the  decree  by  punishing  for  con- 
tempt disobedience  to  it.  But  when  the  judgment,  as  in  Pearce  v.  Ol- 
ney, supra,  was  made  the  cause  of  action  at  law,  equity  enjoined  the 
plaintiff,  shown  to  be  guilty  of  the  fraud,  from  prosecuting  the  action. 
Our  equity  reports  contain  many  illustrations  of  the  practice.  Hadley 
v.  Rountree,  59  N.  C.  107.  The  underlying  principle  is  that  the  judg- 
ment of  a  sister  state  will  be  given  the  same  faith  and  credit  which  is 
given  domestic  judgments. 

It  is  contended,  however,  and  with  force,  that  the  "faith  and  credit" 
to  be  given  such  judgment  is  measured  by  the  law  of  the  state  in  which 
it  is  rendered.  We  find,  upon  examining  the  decisions  made  by  the 
Maryland  court,  that  in  that  state  a  court  of  equity  will  enjoin  the  en- 
forcement of  a  judgment  obtained  by  fraud.  We  had  no  doubt  that 
such  was  the  law  in  that  state. 

[The  learned  justice  here  recited  extracts  from  Little  v.  Price,  1  Md. 
Ch.  182,  and  Wagner  v.  Shank,  59  Md.  313.] 

It  is  thus  apparent  that  the  judgment  obtained  by  the  fraud  of  plain- 
tiffs, as  found  by  the  jury,  would  be  open  to  attack  in  the  courts  of 
Maryland  upon  the  universally  accepted  principles  of  equity  jurispru- 
dence invoked  in  the  courts  of  this  state,  and  in  giving  the  defendant 
relief  we  are  giving  the  judgment  the  same  "faith  and  credit"  which 
it  has  in  that  state.  Mr.  Bailey,  in  his  work  on  Jurisdiction,  302,  203, 
notes  the  language  of  Judge  Gray  in  Christmas  v.  Russell,  supra,  and 
Fuller,  C.  J.,  in  Cole  v.  Cunningham,  supra,  saying:  ''However  it 
should  be  conceded  that  whatever  may  have  been  the  rule  in  the  court 
prior  to  the  decision  in  Cole  v.  Cunningham,  that  the  rule  there  stated 
must  be  taken  as  the  present  doctrine  of  that  court."  He  notes  the  di- 
versity in  the  several  states  saying  that  in  Maryland  the  court  has  not 
followed  the  rule  in  Cunningham's  Case,  citing  Hambleton  v.  Glenn,  72 
Md.  351,  20  Atl.  121.  In  that  case  the  question  was  whether  in  that 
state  the  judgment  rendered  in  Virginia  could  be  collaterally  attacked 
for  fraud.  That  is  not  the  question  here,  but  whether  in  Maryland 
the  judgment  of  its  own  courts  could  be  enjoined  in  equity  for  fraud, 
and,  as  we  have  seen,  it  may  be.     We  are  not  seeking  to  know  what  the 


Ch.    4)  JUDGMENTS.  151 

courts  of  Maryland  would  permit  to  be  done  if  a  North  Carolina  judg- 
ment was  sued  upon  there,  but  what  they  will  permit  to  be  done  when 
one  of  their  own  judgments  is  sued  upon  and  attacked  for  fraud.  The 
plaintiff  says,  however  this  may  be,  the  defendant  can  have  this  relief 
only  in  Maryland;  that  he  must  go  into  that  state,  and  attack  the  judg- 
ment or  enjoin  the  plaintiff.  Mr.  Freeman  says:  "If  the  judgment 
was  procured  under  circumstances  requiring  its  enforcement  to  be  en- 
joined in  equity,  the  question  will  arise  whether  these  circumstances 
may  be  interposed  as  a  defense  to  an  action  on  the  judgment  in  an- 
other state.  Notwithstanding  expressions  to  the  contrary,  we  appre- 
hend that,  in  bringing  an  action  in  another  state,  .the  judgment  creditor 
must  submit  to  the  law  of  the  forum,  and  must  meet  the  charge  of  fraud 
in  its  procurement,  when  presented  in  any  form  in  which  fraud  might 
be  urged  in  an  action  on  a  domestic  judgment.  If,  in  the  state  in  which 
the  action  is  pending,  fraud  can  be  pleaded  to  an  action  on  a  domestic 
judgment,  it  is^qually  available  and  equally  efficient  in  actions  on  judg- 
ments of  other  states.  *  *  *  It  is  true  that  two  of  the  decisions  of 
the  Supreme  Court  of  the  United  States  coiifairrfhe  general  statement 
that  the  plea  of  fraud  is  not  available  as  an  answer  to  an  action  on  a 
judgment — citing  Christmas  v.  Russell  and  Maxwell  v.  Stewart,  supra. 
We  apprehend,  however,  that  these  decisions  are  inapplicable  in  those 
states  in  which 'tlTe'distihction  between  law  and  equity  is  attempted  to 
be  abolished,  and  equitable  as  well  as  legal  defenses  are,  when  properly 
pleaded,  admissible  in  actions  at  law."  Freeman  on  Judgniehts,~§"576. 
If  those~stafes  in  which  equitable  remedies  were  administered  only  by 
courts  of  equity  enjoined  proceeding  at  law  upon  a  judgment  obtained 
by  fraud,  why  should  not,  in  those  courts  administering  legal  and 
equitable  rights  and  remedies  in  one  court  and  one  form  of  action, 
the  defendant  be  permitted  to  set  up  his  equitable  defense  to  the  action 
on  the  judgment?  The  question  is  answered  by  the  case  of  Gray  v. 
Richmond  Bicycle  Co.,  167  N.  Y.  3i8,  60  N.  E.  663,  82  Am.  St.  Rep. 
720.  The  action  was  brought  on  a  note  which  the  court  held  was 
merged  into  a  judgment  rendered  in  Indiana.  It  was  alleged  that  the 
judgment  was  procured  by  fraud.  Vann,  J.,  said  that  it  was  admitted 
that  "even  a  foreign  judgment  may  be  successfully  assailed  for  fraud 
in  its  procurement.  *  *  '''  It  was  not  necessary  to  go  into  the  state 
of  Indiana  to  obtain  relief  from  the  judgment  through  its  courts,  for, 
as  we  have  held,  a  court  from  one  state  may,  when  it  has  jurisdiction 
of  the  parties,  determine  the  question  whether  a  judgment  between 
them,  rendered  in  another  state,  was  obtained  by  fraud,  and,  if  so,  may 
enjoin  the  enforcement  of  it,  although  its  subject-matter  is  situated  in 
such  other  state.  The  assertion  of  the  foreign  judgment  as  a  bar  in 
this  action  was  an  attempt  to  enforce  it  indirectly  and  it  was  the  duty 
of  the  trial  court  to  send  the  case  to  the  jury  with  the  instruction  that, 
if  they  found  the  judgment  was  procured  by  fraud,  it  could  not  be  as- 
serted as  a  bar  in  this  state."  Davis  v.  Cornue,  151  N.  Y.  172,  179,  45 
N.  E.  449.     The  same  rule  is  laid  down  by  Black. 


152  GENERAL  PROVISIONS.  (Part  1 

In  some  of  the  states,  when  the  formal  distinction  between  law  and 
equity  is  abrogated,  the  law  allows  equitable  defenses  to  be  set  up  in 
an  action  at  law.  Hence,  in  those  states,  when  the  suit  is  brought  upon 
a  domestic  judgment,  the  defendant  is  allowed  to  plead  any  circum- 
stances of  fraud  which  would  have  justified  a  court  of  equity  in  inter- 
fering in  his  behalf.  Now,  when  the  same  judgment  is  made  the  basis 
of  an  action  of  another  state,  he  ought  to  be  allowed  the  same  latitude 
of  defense ;  for  if  it  were  otherwise,  the  foreign  court  would  be  required 
to  give  greater  faith  and  credit  to  the  judgment  than  it  is  entitled  to  at 
home,  which  the  Constitution  does  not  require.  Black  on  Judgments, 
§  918.  That  the  defense  made  by  defendant  may,  under  our  Code,  be 
set  up  by  way  of  answer,  is  well  settled.  The  cases  in  point  are  collect- 
ed in  Clark's  Code  (3d  Ed.)  p.  238.     *     *     *  29 

We  find  no  error  in  the  ruling  of  his  honor  in  regard  to  the  burden 
of  proof  or  probative  force  of  the  testimony  required  to  establish  the  de- 
fense. We  have  examined  the  authorities  cited  by  plaintiffs'  counsel, 
and  while  there  is,  to  say  the  least,  some  apparent  conflict,  we  are  of 
the  opinion  that  the  conclusion  reached  by  us  is  in  accordance  with  the 
weight  of  authority  and  those  best  sustained  by  reason. 

There  is  no  error.^" 


FAUNTLEROY  v.  LUM. 

(Supreme  Court  of  the  United  States,  1908.     210  U.  S.  230,  28  Sup.  Ct.  641, 

52  L.  Ed.  1039.) 

Holmes,  J.  This  is  an  action  upon  a  Missouri  judgment,  brought  in 
a  court  of  Mississippi.  The  declaration  set  forth  the  record  of  the 
judgment.  The  defendant  pleaded  that  the  original  cause  of  action 
arose  in  Mississippi  out  of  a  gambling  transaction  in  cotton  futures ; 
that  he  declined  to  pay  the  loss ;  that  the  controversy  was  submitted  to 
arbitration,  the  question  as  to  the  illegality  of  the  transaction,  however, 
not  being  included  in  the  submission;  that  an  award  was  rendered 
against  the  defendant ;  that  thereafter,  finding  the  defendant  temporari- 
ly in  Missouri,  the  plaintiff  brought  suit  there  upon  the  award ;  that  the 
trial  court  refused  to  allow  the  defendant  to  show  the  nature  of  the 
transaction,  and  that,  by  the  laws  of  Mississippi,  the  same  was  illegal 
and  void,  but  directed  a  verdict  if  the  jury  should  find  that  the  submis- 
sion and  award  were  made,  and  remained  unpaid ;  and  that  a  verdict 
was  rendered  and  the  judgment  in  suit  entered  upon  the  same.  (The 
plaintiff  in  error  is  an  assignee  of  the  judgment,  but  nothing  turns  upon 

2  9  In  the  omitted  portion  of  the  opinion  it  was  held  that  the  defense  of 
fraud  might  be  set  up  in  a  justice's  court. 

30As  to  fraud  in  acquiring  jurisdiction,  see  Jaster  v.  Currie,  198  U.  S.  144, 
25  Sup.  Ct.  014,  49  L.  Ed.  988  (1905)  ;  Abercronibie  v.  Abercrombie,  G4  Kan. 
29,  G7  Pac.  539  (1902)  ;  and  as  to  effect  of  fraud  in  general,  see  94  Am.  St. 
Kep.  549-550;  103  Am.  St.  Kep.  313-31G;  23  Cyc.  1589-1591;  Freeman  on 
Judgments  (4th  Ed.)  §  576;  lilaclc  on  Judgments  (2d  Ed.)  §§  917-921. 


Ch.   4)  JUDGMENTS.  153 

that.)  The  plea  was  demurred  to  on  constitutional  grounds,  and  the 
demurrer  was  overruled,  subject  to  exception.  Thereupon  replications 
were  filed,  again  setting  up  the  Constitution  of  the  United  States  (ar- 
ticle -i,  §  1),  and  were  demurred  to.  The  Supreme  Court  of  Mississippi 
held  the  plea  good  and  the  replications  bad,  and  judgment  was  entered 
for  the  defendant.     Thereupon  the  case  was  brought  here. 

The  main  argument  urged  by  the  defendant  to  sustain  the  judgment 
below  is  addressed  to  the  jurisdiction  of  the  Mississippi  courts. 

The  laws  of  Mississippi  make  dealingin^  futures  a  mjsdemeanor,  and 
provide  thaLcontracts  of  thaFsort,_niadjrmIhnnt  int^jnTIggeliver  the 
commodity  or  to  pay  the  price, ^'shall  not  b£_enforced  by  any  court. 
Annotated  aT(!e-orTSU2n§ll20,"H21,  2117.  Th^^defendant  contends 
that  this  language  deprives  the  Mississip]pij:ourts  of  jurisdictionT  anH 
that  tke"ca|ejsTil<rAnglo^Ameri£an  PrQvisioirCo.  v.  Davis  Provision 
Co.,  191  U.  S.  3737"2r"Sup:'C't7  92,  48  L.Ed.  225.  There  the  New 
York  statutes  refused  to  provide  a  court  into  which  a  foreign  corpora- 
tion could  come,  except  upon  causes  of  action  arising  within  the  state, 
etc.,  and  it  was  held  that  the  state  of  New  York  was  under  no  constitu- 
tional obligation  to  give  jurisdiction  to  its  Supreme  Court  against  its 
will.     One  question  is  whether  that  decision  is  in  point. 

No  doubt  it  sometimes_may_bejchfficult  to  decide,  whether  certain 
words  in  a  statute  are  directed  to  jurisdiction  or  to  merits,  but_the  dis-_ 
tinction  between  the  twO  Js-^lain.  Orre^goes  tgThe~power,  the~other 
only  to  th^duty,jif_the_court.  Under  the  common  law  it  is  the  dut^f 
a  court  of  general  jurisHtgtiuTr-not  to  ent^  adjudgment  upon  a^_parol 
promise  made  without  consideration ;  but  it  has  power  to  do  it.  and, 
if  it  does,  the^judgment  js  unimpeachable,  unless  reversed.  Yet  a 
statute  could  be  framedtiiaTvvould  make  the  power,  that  is,  the  juris- 
diction, of  the  court,  dependent  upon  whether  there  was  a  consideration 
or  not.  Whether  a  given  statute  is  intended  simply  to  establish  a  rule^ 
of  substantive*  laAV,  and  .tHusto  define  the  duty  of  thF'court,  or  is 
meant  to  limit  its  power,  is"ir~questioh  of  construction  and  common 
sense.  WHi^TT'Tf^ affects  a  court  .ot  general  jurisdiction,  and'~~deals 
with  a  matter  upon  which  that  court  must  pass,  we  naturally  are  slow 
to  read  ambiguous  words  as  meaning  to  leave  the  judgment  open  to 
dispute,  or  as  intended  to  do  more  than  to  fix  the  rule  by  which  the 
court  should  decide. 

The  case  quoted  concerned  a  statute  plainly  dealing  with  the  au- 
thority and  jurisdiction  of  the  New  York  court.     The  statute  now  be; 


fore  us  se^s  to  us  only^tojay  rloAvn  a  rule  of  decision.  The'Mis- 
sissippi  court  m  which  this  action  was  brought  is  a  court  of  general 
jurisdiction  and  would  have  to  decide  upon  the  validity  of  the  bar,  if 
the  suit  upon  the  award  or  upon  the  original  cause  of  action  had  been 
brought  there.  The  words  "shall  not  be  enforced  by  any  court"  are 
simply  another,  possibly  less  emphatic,  way  of  saying  that  an  action 
shall  not  be  brought  to  enforce  such  contracts.  As  suggested  by  the 
counsel  for  the  plaintiff  in  error,  no  one  would  say  that  the  words  of 


154  GENERAL  PROVISIONS.  (Part  1 

the  Mississippi  statute  of  frauds,  "An  action  shall  not  be  brought  where- 
by to  charge  a  defendant"  (Code  1892,  §  4225),  go  to  the  jurisdiction 
of  the  court.  Of  course  it  could  be  argued  that  logically  they  had  that 
scope,  but  common  sense  would  revolt.  See  191  U.  S.  375,  21  Sup. 
Ct.  93  (18  L.  Ed.  227).  A  stronger  case  than  the  present  is  General  Oil 
Co.  V.  Crain,  209  U.  S.  211,  216,  28  Sup.  Ct.  475,  52  L.  Ed.  754.  We 
regard  this  question  as  open  under  the  decisions  below,  and  we  have 
expressed  our  opinion  upon  it  independent  of  the  effect  of  the  judgment, 
although  it  might  be  that,  even  if  jurisdiction  of  the  original  cause  of 
action  was  withdrawn,  it  remained  with  regard  to  a  suit  upon  a  judg- 
ment based  upon  an  award,  whether  the  judgment  or  award  was  con- 
clusive or  not.  But  it  might  be  held  that  the  law  as  to  jurisdiction  in 
one  case  followed  the  law  in  the  other,  and  therefore  we  proceed  at  once 
to  the  further  question,  whether  the  illegality  of  the  original  cause  of 
action  in  Mississippi  can  be  relied  upon  there  as  a  ground  for  denying  a 
recovery  upon  a  judgment  of  another  state. 

The  doctrine  laid  down  by  Chief  Justice  Marshall  was  "that  the  judg- 
ment of  a  state  court  should  have  the  same  credit,  validity,  and  effect 
in  every  other  court  in  the  United  States  which  it  had  in  the  state  where 
it  was  pronounced,  and  that  whatever  pleas  would  be  good  to  a  suit 
thereon  in  such  state,  and  none  others,  could  be  pleaded  in  any  other 
court  of  the  United  States."  Hampton  v.  McConnel,  3  Wheat.  234,  4 
L.  Ed.  378.  There  is  no  doubt  that  this  quotation  was  supposed  to 
be  an  accurate  statement  of  the  law  as  late  as  Christmas  v.  Russell,  5 
Wall.  290,  18  h.  Ed.  475,  where  an  attempt  of  Mississippi,  by  statute, 
to  go  behind  judgments  recovered  in  other  states,  was  declared  void, 
and  it  was  held  that  such  judgments  could  not  be  impeached  even  for 
fraud. 

But  the  law  is  supposed  to  have  been  changed  by  the  decision  in  Wis- 
consin V.  Pelican  Ins.  Co.,  127  U.  S.  265,  8  Sup.  Ct.  1370,  32  L.  Ed.  239. 
That  was  a  suit  brought  in  this  court  by  the  state  of  Wisconsin  upon  a 
Wisconsin  judgment  against  a  foreign  corporation.  The  judgment  was 
for  a  fine  or  penalty  imposed  by  the  Wisconsin  statutes  upon  such  corpo- 
rations doing  business  in  the  state  and  failing  to  make  certain  returns, 
and  the  ground  of  decision  was  that  the  jurisdiction  given  to  this  court 
by  article  3,  §  2,  as  rightly  interpreted  by  the  judiciary  act,  now  Rev. 
St.  §  687  (U.  S.  Comp.^St.  1901,  p.  565),  was  confined  to  "controversies 
of  a  civil  nature,"  which  the  judgment  in  suit  was  not.  The  case  was  not 
within  the  words  of  article  4,  §  1,  and,  if  it  had  been,  still  it  would  not 
have,  and  could  not  have,  decided  anything  relevant  to  the  question  be- 
fore us.  It  is  true  that  language  was  used  which  has  been  treated  as 
meaning  that  the  original  claim  upon  which  a  judgment  is  based  may 
be  looked  into  further  than  Chief  Justice  Marshall  supposed.  But  evi- 
dently it  meant  only  to  justify  the  conclusion  reached  upon  the  specific 
point  decided,  for  the  proviso  was  inserted  that  a  court  "cannot  go  be- 
hind the  judgment  for  the  purpose  of  examining  into  the  validity  of  the 
claim."     127  U.  S.  293,  8  Sup.  Ct.  1375  (32  L.  Ed.  239).     However, 


Ch.    4)  JUDGMENTS.  155 

the  whole  passage  was  only  a  dictum  and  it  is  not  worth  while  to  spend 
much  time  upon  it. 

We  assume  that  the  statement  of  Chief  Justice  Marshall  is  correct. 
It  is  confirmed  by  Act  May  26,  1790,  c.  11,  1  Stat.  123  (Rev.  St.  §  905 ; 
U.  S.  Comp.  St.  1901,  p.  677),  providing-  that  the  said  records  and  ju- 
dicial proceedings  "shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States  as  they  have  by  law  or  usage  in 
the  courts  of  the  state  from  whence  the  said  records  are  or  shall  be 
taken."  See,  further,  Tilt  v.  Kelsey,  207  U.  S.  43,  57,  28  Sup.  Ct.  1, 
52  L.  Ed.  95.  Wliether  the  award  ^A^nnld  nr^wpuldjiot  have  been  con- 
clusive, and  whether^the  ruling  of  the  Missouri  rour±  upon  that  rnatter 
was  right  or  wroiig,  there__cailj3e  no  question  that  the  judgment  was 
conclusive  in'1'^IIssourroii  tlie  validity  of  the_cause_of  action.  Pitts  v. 
Fugate,  -41r1^Zror405TState~e^Teniudson  v.  Trammel,  106  Mo.  510, 
17  S.  W.  502 ;  In  re  Copenhaver,  118  Mo.  377,  24  S.  W.  161,  40  Am  St. 
Rep.  382.  A  judgment  is  conclusive  as  to  all  the  media  concludendi 
(United  States  v.  Cahfornia  &  O.  Land  Co.,  192  U.  S.  355,  24  Sup.  Ct. 
266,  48  L.  Ed.  41 6) ;  and  it  needs  no  authority  to  show  that  it  cannot 
be  impeached  either  in  or  out  of  the  state  by  showingjjiat  it  was  basecl_ 
upon  a  mis^talce  of  law.  Of^course,  a ^waht  of  jurTsdiction  over  either 
the  person  or  the  subject-matter  might  be  shown.  Andrews  v.  An- 
drews, 188  U.  S.  14,  23  Sup.  Ct.  237,  47  L.  Ed.  366 ;  Clarke  v.  Clarke, 
178  U.  S.  186,  20  Sup.  Ct.  873,  44  L.  Ed.  1028.  But,  as  the  jurisdic- 
tion of  the  Missouri  court  is  not  open  to  dispute,  the  judgment  cannot 
be  impeached  in  Mississippi  even  if  it  went  upon  a  misapprehension  of 
the  Mississippi  law.  See  Godard  v.  Gray,  L.  R.  6  Q.  B.  139;  Mac- 
Donald  V.  Grand  Trunk  R.  Co.,  71  N.  H.  448,  52  Atl.  982,  59  L.  R.  A. 
448,  93  Am.  St.  Rep.  550 ;  Peet  v.  Hatcher,  113  Ala.  514,  21  South. 
11,  57  Am.  St.  Rep.  45. 

We  feel  no  apprehensions  that  painful  or  humiliating  consequences  will 
follow  upon  our  decision.  No  court  would  give  judgment  for  a  plain- 
tifif  unless  it  believed  that  the  facts  were  a  cause  of  action  by  the  law  de- 
termining their  effect.  IMistakes  will  be  rare.  In  this  case  the  Mis- 
souri court  no  doubt  supposed  that  the  award  was  binding  by  the  law 
of  Mississippi.  If  it  was  mistaken,  it  made  a  natural  mistake.  The  va- 
lidity of  its  judgment,  even  in  Mississippi,  is,  as  we  believe,  the  result  of 
the  Constitution  as  it  always  has  been  understood,  and  is  not  a  matter 
to  arouse  the  susceptibilities  of  the  states,  all  of  which  are  equally  con- 
cerned in  the  question  and  equally  on  both  sides. 

Judgment  reversed.^^ 

31  The  dissenting  opinion  of  White.  J.,  with  whom  concurred  Harlan,  Mc- 
Kenna,  and  Day,  JJ.,  has  been  omitted. 


156  GENERAL  PROVISIONS.  (Part  1 


HILTON  V.  GUYOT. 

(Supreme  Court  of  the  United  States,  1895.     159  U.  S.  113,  16  Sup.  Ct  139, 

40  L.  Ed.  95.) 

The  first  of  these  two  cases  was  an  action  at  law,  brought  December 
18,  1885  in  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York,  by  Gustave  Bertin  Guyot,  as  official  liquidator 
of  the  firm  of  Charles  Fortin  &  Co.,  and  by  the  surviving  members 
of  that  firm,  all  aliens  and  citizens  of  the  Republic  of  France,  against 
Henry  Hilton  and  William  Libbey,  citizens  of  the  United  States  and 
the  state  of  New  York,  and  trading  as  copartners,  in  the  cities  of  New 
York  and  Paris  and  elsewhere,  under  the  firm  name  of  A.  T.  Stewart 
&  Co.  The  action  was  upon  a  judgment  recovered  in  a  French  court 
at  Paris  in  the  Republic  of  France  by  the  firm  of  Charles  Fortin  &  Co., 
all  whose  members  were  French  citizens,  against  Hilton  and  Libbey, 
trading  as  copartners  as  aforesaid,  and  citizens  of  the  United  States 
and  of  the  state  of  New  York. 

In  their  answer  defendants  alleged  in  substance  that  the  French 
court  had  no  jurisdiction  over  them  for  want  of  proper  citation  or  ap- 
pearance ;  that  they  had  not  had  a  full  and  fair  trial,  the  arbitrator  and 
the  court  having  been  deceived  and  misled  by  false  and  fraudulent  ac- 
counts introduced  by  Fortin  &  Co.  and  by  hearsay  testimony  given 
without  the  solemnity  of  an  oath  and  without  cross-examination,  and 
by  the  fraudulent  suppression  of  books  and  papers;  that  it  would  be 
contrary  to  natural  justice  to  enforce  the  judgment  without  an  exami- 
nation of  its  merits  and  that  if  such  a  judgment  had  been  obtained  in 
the  United  States,  its  merits  would  be  re-examined  by  the  French 
courts  before  it  would  be  enforced. 

The  defendants,  on  June  22,  1888,  filed  a  bill  in  equity  against  the 
plaintiffs,  setting  forth  the  same  matters  as  in  their  answer  to  the  ac- 
tion at  law,  and  praying  for  a  discovery  and  for  an  injunction  against 
the  prosecution  of  the  action.  To  that  bill  a  plea  was  filed,  setting  up 
the  French  judgment;  and  upon  a  hearing  the  bill  was  dismissed  (42 
Fed.  249).  From  the  decree  dismissing  the  bill  an  appeal  was  taken 
which  was  the  second  case  now  before  the  court. 

The  action  at  law  afterwards  came  on  for  trial  by  a  jury.  The  court 
directed  a  verdict  for  the  plaintiffs  in  the  sum  of  $277,775.44,  being 
the  amount  of  the  French  judgment  and  interest.  Defendants  sued 
out  a  writ  of  error. 

The  writ  of  error  in  the  action  at  law  and  the  appeal  in  the  suit  in 
equity  were  argued  together  in  January,  1894,  and,  by  direction  of  the 
court,  were  reargued  in  April,  1894.^^ 

Gray,  J.^^     *     *     *     j^^  order  to  appreciate  the  weight  of  the  va- 

32  This  brief  statement  of  facts  has  been  substituted  for  that  of  the  orig- 
inal report. 

3  3  Portions  of  the  opinion  have  been  omitted. 


Ch.    4)  JUDGMENTS.  157 

rious  authorities  cited  at  the  bar,  it  is  important  to  distinguish  differ- 
ent kinds  of  judgments.  Every  foreign  judgment,  of  whatever  nature, 
in  order  to  be  entitled  to  any  effect,  must  have  been  rendered  by  a 
court  having  jurisdiction  of  the  cause,  and  upon  regular  proceedings, 
and  due  notice.  In  alluding  to  dift"erent  kinds  of  judgments,  therefore, 
such  jurisdiction,  proceedings,  and  notice  will  be  assumed.  It  will 
also  be  assumed  that  they  are  untainted  by  fraud,  the  effect  of  which 
will  be  considered  later.  ^    I 

A  judgment  in  rem,  adjudicating  the  title  to  a  ship  or  other  movable  -pc/t/i*»^ 

property  within  the  custody  of  the  court,  is  treated  as  valid  every-  • 

^where.  As  said  by  Chief  Justice  Marshall :  "The  sentence  of  a  com- 
petent court,  proceeding  in  rem,  is  conclusive  with  respect  to  the  thing 
itself,  and  operates  as  an  absolute  change  of  the  property.  By  such 
sentence  the  right  of  the  former  owner  is  lost,  and  a  complete  title 
given  to  the  person  who  claims  under  the  decree.  No  court  of  co- 
ordinate jurisdiction  can  examine  the  sentence.  The  question,  there- 
fore, respecting  its  conformity  to  general  or  municipal  law  can  never 
arise,  for  no  co-ordinate  tribunal  is  capable  of  making  the  inquiry." 
Williams  v.  Armroyd,  7  Cranch,  423,  432,  3  L.  Ed.  392.  The  most 
common  illustrations  of  this  are  decrees  of  courts  of  admiralty  and 
prize,  which  proceed  upon  principles  of  international  law.  Croudson 
v.  Leonard,  4  Cranch,  434,  2  L.  Ed.  670 ;  Williams  v.  Armroyd,  above  • 
cited ;  Ludlow  v.  Dale,  1  Johns.  Cas.  16.  But  the  same  rule  applies  to 
judgments  in  rem  under  municipal  law.  Hudson  v.  Guestier,  4  Cranch, 
293,  2  L.  Ed.  625 ;  Ennis  v.  Smith,  14  How.  400,  430,  14  L.  Ed.  472 ; 
Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  291,  8  Sup.  Ct  1370,  32 
L.  Ed.  239 ;  Scott  v.  McNeal,  154  U.  S.  34,  46,  14  Sup.  Ct.  1108,  38  L. 
Ed.  896;  Castrique  v.  Imrie,  L.  R.  4  H.  L.  414;  Monroe  v.  Douglas, 
4  Sandf.  Ch.  (N.  Y.)  126. 

A  judgment  affecting  the  statiis_  of  persons,  such  as  a  decree  con-        Xc>v*^  . 
firming  or  dissolving  a  marriage,  is  recognized  as  valid  in  every  coun-  * 

try,  unless  contrary  to  the  policy  of  its  own  law.  Cottington's  Case, 
2  Swanst.  326;  Roach  v.  Garvan,  1  Ves.  Sr.  157;  Harvey  v.  Far- 
nie,  8  App.  Cas.  43;  Cheely  v.  Clayton,  110  U.  S.  701,  4  Sup.  Ct.  328, 
28  L.  Ed.  298.  It  was  of  a  foreign  sentence  of  divorce  that  Lord  Chan- 
cellor Nottingham,  in  the  house  of  lords,  in  1688,  in  Cottington's  Case, 
above  cited,  said :  "It  is  against  the  law  of  nations  not  to  give  credit 
to  the  judgments  and  sentences  of  foreign  countries  till  they  be  revers- 
ed by  the  law,  and  according  to  the  form,  of  those  countries  wherein 
they  were  given ;  for  what  right  hath  one  kingdom  to  reverse  the 
judgment  of  another?  And  how  can  we  refuse  to  let  a  sentence  take 
place  till  it  be  reversed  ?  And  what  confusion  would  follow  in  Christen- 
dom, if  they  should  serve  us  so  abroad,  and  give  no  credit  to  our  sen- 
tences !" 

Other  judgments,  not  strictly  in  rem,  under  which  a  person  has 
been  compelled  to  pay  money,  are  so  far  conclusive  that  the  justice  of 
the  payment  cannot  be  impeached  in  another  country,  so  as  to  compel 


0^ 


? 


^ 


158  GENERAL  PROVISIONS.  (Part  1 

him  to  pay  it  again.  For  instance,  a  judgment  in  foreign  attachment 
is  conclusive,  as  between  the  parties,  of  the  right  to  the  property  or 
money  attached.  Story,  Confl.  Laws  (2d  Ed.)  §  592a.  And  if,  on  the 
dissolution  of  a  partnership,  one  partner  promises  to  indemnify  the 
other  against  the  debts  of  the  partnership,  a  judgment  for  such  a  debt, 
under  Avhich  the  lattier  has  been  compelled  to  pay  it,  is  conclusive  evi- 
dence of  the  debt  in  a  suit  by  him  to  recover  the  amount  upon  the 
promise  of  indemnity.  It  was  of  such  a  judgment,  and  in  such  a  suit, 
that  Lord  Nottingham  said : ,  "Let  the  plaintiff  receive  back  so  much 
of  the  money  brought  into  court  as  may  be  adequate  to  the  sum  paid 
on  the  sentence  for  custom,  the  justice  whereof  is  not  examinable 
here."  Gold  v.  Canaham  (1689)  2  Swanst.  325,  1  Ch.  Cas.  311.  See, 
also,  Tarleton  v.  Tarleton,  4  Maule  &  S.  20 ;  Konitzky  v.  Meyer,  49  N. 
Y.  571. 

Other  foreign  judgments  which  have  been  held  conclusive  of  the 
matter  adjudged  were  judgments  discharging  obligations  contracted  in 
the  foreign  country  between  citizens  or  residents  thereof.  Story,  Confl. 
Laws,  §§  330-341 ;  May  v.  Breed,  7  Cush.  (Mass.)  15,  54  Am.  Dec. 
700.  Such  was  the  case  cited  at  the  bar  of  Burroughs  (or  Burrows)  v. 
Jamineau  (or  Jemino),  Moseley,  1,  2  Strange,  733,  2  Eq.  Cas.  Abr.  p. 
525,  pi.  7,  12  Vin.  Abr.  p.  87,  pi.  9,  Sel.  Cas.  Ch.  69,. and  1  Dickens, 
48.     *     *     * 

The  extraterritorial  .effect  of  judgments  in  personam,  at  law,  or  in 
equity  may  differ,  according  to  the  parties  to  the  cause.  A  judgment 
of  that  kind  between  two  citizens  or  residents  of  the  country,  and 
thereby  subject  to  the  jurisdiction  in  which  it  is  rendered,  may  be  held 
conclusive  as  between  them  everywhere.  So,  if  a  foreigner  invokes  the 
jurisdiction  by  bringing  an  action  against  a  citiz£Q>  both  may  be  held 
bound  by  a  judgment  in  favor  of  eifher;  and  if  a  citizen  sues  a  foreign- 
er, and  judgment  is  rendered  in  favor  of  the  latter,  both  may  be  held 
equally  bound.  Ricardo  v.  Garcias,  12  Clai'k  &  F.  368 ;  The  Griefs- 
wald,  Swab.  430,  435 ;  Barber  v.  Lamb,  8  C.  B.  (N.  S.)  95 ;  Lea  v. 
Deakin,  11  Biss.  23,  Fed.  Cas.  No.  8,154. 

The  effect  to  which  a  judgment,  purely  executory,  rendered  in  favor 
of  a  citizen  or  resident  of  the  country,  in  a  suit  thei-e_brought  _by_hini 
against__a"foreign£r,  may  be  entitled  in  an  action  thereon  against  the 
latter  in  his  own  country,  as  is  the  case  now  before  us,  presents  a  more 
difficult  question,  upon  which  there  has  been  some  diversity  of  opinion. 

Early  in  the  last  century  it  was  settled  in  England  that  a  foreign 
judgment  oi^  a  debt  was  considered,  not  like  a  judgment  of  a  domestic 
court  of  record,  as  a  record  or  a  specialty,  a  lawful  consideration  for 
which   was   conclusively   presumed,   but   as   a   simple   contract   only. 

[The  learned  justice  here  examined  in  detail  the  early  English 
cases.] 

The  English  cases  above  referred  to  have  been  stated  with  the  more 
particularity  and  detail,  because  they  directly  bear  upon  the  question, 


Ch.  4) 


JUDGMENTS. 


159 


what  was  the  English  law,  being  then  our  own  law,  before  the  Declara- 
tion of  Independence.  They  demonstrate  that  by  that  law,  as  gener- 
ally understood,  and  as  declared  by  Hardwicke,  Mansfield,  BuUer, 
Camden,  Eyre,  and  EHenborough,  and  doubted  by  Kenyon  only,  a 
judgment  recovered  in  a  foreign  country  for  a  sum  of  money,  when 
sued  upon  in  England,  was  only  prima  facie  evidence  of  the  demand, 
and  subject  to  be  examined  and  impeached.  The  law  of  England  since 
it  has  become  to  us  a  foreign  country  will  be  considered  afterwards. 

The  decisions  of  this  court  have  clearly  recognized  that  judgments 
of  a  foreign  state  are  prima  facie  evidence  only,  and  that,  but  for  these 
constitutional  and  legislative  provisions,  judgments  of  a  state  of  the 
Union,  when  sued  upon  in  another  state,  would  have  no  greater  ef- 

-p^y-»+  -K  "I*  "T* 

[The  learned  justice  here  commented  upon  Croudson  v.  Leonard, 
4  Cranch,  434,  3  L.  Ed.  G70;  Alills  v.  Duryee,  7  Cranch,  481,  3  L.  Ed. 
411 ;  Hampton  v.  McConnel,  3  Wheat.  234,  4  L.  Ed.  378 ;  McElmoyle 
V.  Cohen,  13  Pet.  312,  10  L.  Ed.  177;  D'Arcy  v.  Ketchum,  11  How.  i'g5, 
13  L.  Ed.  648 ;  Christmas  v.  Russell,  5  Wall.  290,  18  L.  Ed.  475 ;  Bis- 
choff  v.  WetTiered,  9  Wall.  812,  19  L.  Ed.  829 ;  Hanley  v.  Donoghue, 
116  U.  S.  1,  6  Sup.  Ct.  242,  29  L.  Ed.  535 ;  Wisconsin  v.  Pehcan  Ins. 
Co.,  127  U.  S.  265,  8  Sup.  Ct.  1370,  32  L.  Ed.  239.] 

But  neither  in  those  cases  nor  in  any  other  has  this  court  hitherto 
been  called  upon  to  determine  how  far  foreign  judgments  may  be  re- 
examined upon  their  merits,  or  be  impeached  for  fraud  in  obtaining 
them.     *     *     * 

It  clearly  appears  that,  at  the  time  of  the  separation  of  this  country 
from  England,  the  general  rule  was  fully  established  that  foreign 
judgments  in  personam  were  prima  facie  evidence  only,  and  not  con- 
clusive of  the  merits  of  the  controversy  between  the  parties.  But 
the  extent  and  limits  of  the  application  of  that  rule  do  not  appear  to 
have  been  much  discussed,  or  defined  with  any  approach  to  exactness, 
in  England  or  America,  until  the  matter  was  taken  up  by  Chancellor 
Kent  and  by  Mr.  Justice  Story.     *     *     * 

Mr.  Justice  Story  and  Chancellor  Kent,  as  appears  by  the  passages 
above  quoted  from  their  Commentaries,  concurred  in  the  opinion  that, 
in  a  suit  upon  a  foreign  judgment,  the  whole  merits  of  the  case  could 
not,  as  matter  of  course,  be  re-examined  anew,  but  that  the  defend- 
ant w^as  at  liberty  to  impeach  the  judgment,  not  only  by  showing  that 
the  court  had  no  jurisdiction  of  the  case  or  of  the  defendant,  but  also 
by  showing  that  it  was  procured  by  fraud,  or  was  founded  on  clear 
mistake  or  irregularity,  or  was  bad  by  the  law  of  the  place  where  it 
was  rendered.  Story,  Confl.  Laws,  §  607;  2  Kent,  Comm.  (Gth  Ed.) 
120. 

The  word  "mistake"  was  evidently  used  by  Story  and  Kent,  in  this 
connection,  not  in  its  wider  meaning  of  error  in  judgment,  whether 
upon  the  law  or  upon  the  facts,  but  in  the  stricter  sense  of  misappre- 


160  GENERAL  PROVISIONS.  (Part  1 

hension  or  oversight,  and  as  equivalent  to  what,  in  Burnham  v.  Web- 
ster, before  cited,  Mr.  Justice  Woodbury  spoke  of  as  "some  objec- 
tion to  the  judgment's  reaching  the  merits,  and  tending  to  prove  that 
they  had  not  been  acted  on,"  "some  accident  or  mistake,"  or  "that 
the  court  did  not  decide  at  all  on  the  merits."  1  Woodb.  &  M.  180, 
Fed.  Cas.  No.  2,179. 

The  suggestion  that  a  foreign  judgment  might  be  impeached  for 
error  in  law  of  the  country  in  which  it  was  rendered  is  hardly  consist- 
ent with  the  statement  of  Chief  Justice  Marshall,  when,  speaking  of 
the  disposition  of  this  court  to  adopt  the  construction  given  to  the 
X/^C'^-^'^^  laws  of  a  state  by  its  own  courts,  he  said :    "This  course  is  founded 

5         ,^^J^  °^  *^^  principle,  supposed  to  be  universally  recognized,  that  the  judi- 

^^^.^Ay^p''^     j  „        cial  department  of  every  government,  where  such  department  exists, 
\  Jji/  ^         is  the  appropriate  organ  for  construing  the  legislative  acts  of  that  gov- 

(^/y^^^^^ .       \t^    ernment.     Thus,  no  court  in  the  universe  which  professed  to  be  gov- 
yju^^    V       erned  by  principle  would,  we  presume,  undertake  to  say  that  the  courts 
fjM  Oil/'^'  °^  Great  Britain  or  of  France  or  of  any  other  nation  had  misunder- 

if,  \  stood  their  own  statutes,  and  therefore  erect  itself  into  a  tribunal  which 

jjjr'^      '  should  correct  such  misunderstanding.     We  receive  the  construction 

'•'^  -given  by  the  courts  of  the  nation  as  the  true  sense  of  the  law,  and 

feel  ourselves  no  more  at  liberty  to  depart  from  that  construction  than 
to  depart  from  the  words  of  the  statute."     Elmendorf  v.  Taylor,  10 
Wheat.  153,  159,  160,  6  L.  Ed.  289.    ' 
_In_  recent  tjmes.  foreign,  judgments  rendered  within  the  dominions 
of  the  English  crown,  and  under  the  law_of_^iiglaii4,  after  a  trial 
on  the  merits,  and  no  want  of  jurisdiction  and  no  fraud  or  mistake 
being  shown  or  offered  to  be  shown,  have  been  treated  as  conclusive 
p  ^ij^    <^  '         by  the  highest  courts  of  New  York^Maine^  and  Illinois^  Lazier  v. 
-y^*'^^  Westcott,  26  N.  Y.  146,  150,  82  Am.  Dec."  404 ; '  Dunstan  v.  Higgins, 

138  N.  Y.  70,  74,  33  N.  E.  729,  20  L.  R.  A.  668,  34  Am.  St.  Rep.  431 ; 
Rankin  v.  Goddard,  54  Me.  28,  89  Am.  Dec.  718 ;  Id.,  55  Me.  389  ; 
Baker  v.  Palmer,  83  111.  568.  In  two  early  cases  in  Ohio  it  was  said 
that  foreign  judgments  were  conclusive,  unless  shown  to  have  been 
obtained  by  fraud.  Silver  Lake  Bank  v.  Harding,  5  Ohio,  545,  547; 
Anderson  v.  Anderson,  8  Ohio,  108,  110.  But  in  a  later  case  in  that 
state  it  was  said  that  they  were  only  prima  facie  evidence  of  indebted- 
ness. Pelton  V.  Platner,  13  Ohio,  209,  217,  42  Am.  Dec.  197.  In 
Jones  V.  Jamison,  15  La.  Ann.  35,  the  decision  was  only  that,  by  virtue 
of  the  statutes  of  Louisiana,  a  foreign  judgment  merged  the  original 
cause  of  action  as  against  the  plaintiff. 

The  result  of  the  modo^n  decisions  in  England,  after  much  di- 
versity, not  to  say  vacillation,  of  opinion,  does  not  greatly  differ  (so 
far  as  concerns  the  aspects  in  which  the  English  courts  have  been 
called  upon  to  consider  the  subject)  from  the  conclusions  of  Chancel- 
lor Kent  and  of  Justices  Story  and  Woodbury.     *     *     * 

[The  learned  justice  here  examined  the  English  ca-^es  and  continued 
as  follows:] 


Ch.    4)  JUDGMENTS.  Id 

In  view  of  all  the  authorities  upon  the  subject,  and  of  the  trend  of 
judicial  opinion  in  this  country  and  in  England,  following  the  lead 
of  Kent  and  Story,  we  are  satisfied  that  where  there  has  been  oppor- 
tunity for  a  full  and  fair  trial  abroad  before  a  court  of  competent 
jurisdiction,  conducting  the  trial  upon  regular  proceedings,  after  due 
citation  or  voluntary  appearance  of  the  defendant,  and  under  a  system 
of  jurisprudence  likely  to  secure  an  impartial  administration  of  jus- 
tice between  the  citizens  of  its  own  country  and  those  of  other  coun- 
tries, and  there  is  nothing  to  show  either  prejudice  in  the  court,  or 
in  the  system  of  laws  under  which  it  was  sitting,  or  fraud  in  procuring 
the  judgment,  or  any  other  special  reason  why  the  comity  of  this  na- 
tion should  not  allow  it  full  effect,  the  merits  of  the  case  should  not, 
in   an   action  brought  in   this   country  upon  the   judgment,   be   tried  aaX*^' 

afresh,  as  on  a  new  trial  or  an  appeal,  upon  the  mere  assertion  of  the      ^^/sv^f^^^^^ 
party  that  the  judgment  was  erroneous  in  law  or  in  fact.     The__de- 
fendants,  therejore^ cannot  be  2ermitted,^_upon  that  general  ground^ 
to  contest  theyalidity  or  the~effect  of  the  judgment  sued  on. 

But  they  have  souglrTto  impeach  that  judgment  upon  several  other 
grounds,  which  require  separate  consideration. 

It  is  objected  that  the  appearance  and  litigation  of  the  defendants 
in  the  French  tribunals  were  not  voluntary,  but  by  legal  compulsion, 
and,  therefore,  that  the  French  courts  never  acquired  such  jurisdiction 
over  the  defendants  that  they  should  be  held  bound  by  the  judgment. 
Upon  the  question  what  should  be  considered  such  a  voluntary  ap- 
pearance, as  to  amount  to  a  submission  to  the  jurisdiction  of  a  foreign 
court,  there  has  been  some  difference  of  opinion  in  England.  *  *  * 
But  it  is  now  settled  in  England  that  while  an  appearance  by  the  de- 
fendant in  a  court  of  a  foreign  country,  for  the  purpose  of  protecting 
his  property  already  in  the  possession  of  that  court,  may  not  be  deem- 
ed a  voluntary  appearance,  yet  an  appearance  solely  for  the  purpose 
of  protecting  other  property  in  that  country  from  seizure  is  considered 
as  a  voluntary  appearance.  De  Cosse  Brissac  v.  Rathbone  (1861)  6 
Hurl.  &  N.  301,  30,Law  J.  Exch.  238;  Schibsby  v.  Westenholz  (1870) 
L.  R.  6  Q.  B.  155,  162 ;  Voinet  v.  Barrett  (1885)  1  Cab.  &  El.  554,  54 
Law  J.  Q.  B.  521,  and  55  Law  J.  O.  B.  39. 

The  present  case  is  not  one  of  a  person  traveling  through  or  casually  ^^ 

.found  in  a  foreign  country.     The  defendants,  although  they  were  not     .    "j^.  Ufr'*-'*'"^^ 
citizens  or  residents  of  France,  but  were  citizens  and  residents  of  the 
state  of  New  York,  and  their  principal  place  of  business  was  in  the    ,-  «  ^ 

city  of  New  York,  yet  had  a  storehouse  and  an  agent  in  Paris^  and      i   h>\    *^  '^^ 
were  accustomed  to  purchase^ large  quantities  of  goods  there,  although  (y  ^j^ 

they  did  not  make  sales  in  France.  Under  such  circumstances,  evi- 
dence that  their  sole  object  in  appearing  and  carrying  on  the  litigation 
in  the  French  courts  was  to  prevent  property  in  their  storehouse  at 
Paris,  belonging  to  them,  and  within  the  jurisdiction,  but  not  in  the- 
custody,  of  those  courts,  froni  being  taken  in  satisfaction  of  any  judg- 
ment that  might  be  recovered  against  them,  would  not,  according  to  our 

LOE.CONF.L. — 11 


\/^ 


162  GE^'ERAL  PROVISIONS.  (Part  1 

law,  show  that  those  courts  did  not  acquire  jurisdiction  of  the  persons 
of  the  defendants. 

It  is  next  objected  that  in  those  courts  one  of  the  plaintiffs  was 
permitted  to  testify  not  under  oath,  and  was  not  subjected  to  cross- 
examination  by  the  opposite  party,  and  that  the  defendants  were  there- 
fore deprived  of  safeguards  which  are  by  our  law  considered  es- 
sential to  secure  honesty  and  to  detect  fraud  in  a  witness;  and  also 
that  documents  and  papers  were  admitted  in  evidence,  with  which  the 
defendants  had  no  connection,  and  which  would  not  be  admissible  un- 
der our  own  system  of  jurisprudence.  But  it  having  been  shown  by 
the  plaintiffs,  and  hardly  denied  by  the  defendants,  that  the  practice 
followed  and  the  method  of  examining  witnesses  were  according  to 
,  the  laws  of  France,  we  are  not  prepared  to  hold  that  the  fact  that  the 
procedure  in  these  respects  differed  from  that  of  our  own  courts  is,  of 
itself,  a  sufficient  ground  for  impeaching  the  foreign  judgment.   *   ''•'   * 

There  is  no  doubt  that  both  in  this  country,  as  appears  b}'  the  au- 
thorities already  cited,  and  in  England,  a  foreign  judgment  may  be 
impeached  for  fraud.     *     *     * 

Under  what  circumstances  this  may  be  done  does  not  appear  to  have 
ever  been  the  subject  of  judicial  investigation  in  this  country. 

It  has  often,  indeed,  been  declared  by  this  court  that  the  fraud  which 
entitles  a  party  to  impeach  the  judgment  of  one  of  our  own  tribunals 
must  be  fraud  extrinsic  to  the  matter  tried  in  the  cause,  and  not 
merely  consist  in  false  and  fraudulent  documents  or  testimony  sub- 
mitted to  that  tribunal,  and  the  truth  of  which  was  contested  before 
it  and  passed  upon  by  it.  United  States  v.  Throckmorton,  98  U.  S. 
61,  65,  66,  25  L.  Ed.  93 ;  Vance  v.  Burbank,  101  U.  S.  514,  519,  25  L. 
Ed.  929;  Steel  v.  St.  Louis  Smelting  &  Refining  Co.,  106  U.  S.  447, 
453,  1  Sup.  Ct.  389,  27  L.  Ed.  226;  Moffat  v.  United  States,  112  U. 
S.  24,  32,  5  Sup.  Ct.  10,  28  L.  Ed.  623 ;  United  States  v.  Minor,  114  U. 
S.  233,  242,  5  Sup.  Ct.  836,  29  L.  Ed.  110.  And  in  one  English  case, 
where  a  ship  had  been  sold  under  a  foreign  judgment,  the  like  restric- 
tion upon  impeaching  that  judgment  for  fraud  was  suggested;  but 
the  decision  was  finally  put  upon  the  ground  that  the  judicial  sale 
passed  the  title  to  the  ship.  Cammell  v.  Sewell  (1858-60)  3  Hurl.  &  N. 
617,  646,  5  Hurl.  &  N.  728,  729,  742. 

But  it  is  now  established  in  England,  by  well-considered  and  strong- 

ly-reasoned  decisions  of  the  court  of  appeal,  that  foreign _judgments 

C/^^l  "  may  be  impeached,  jf^  procured  by  false  and  fraudulent  represejita.- 

tibns  ariHTestimony'oT the'~plaintift",^'en  ifTH^  same  question  oT  fraud 

w3sn5r?5CTrted~tcraiT^~Ttecided  byTlTe  foreign2court^__. 

[The  leafnc^'Tustice  here  commented  upon  Abouloff  v.  Oppenheim- 
er  (1882)  10  O.  B.  D.  295;  Vadala  v.  Lawes  (1890)  25  Q.  B.  D.  310; 
Crozat  V.  Brog'den  (1894)  2  Q.  B.  30.] 

In  the  case  at  bar  the  defendants  offered  to  prove,  in  much  detail, 
that  the  plaintiffs  presented  to  the  French  court  of  first  instance  and 
to  the  arbitrator  appointed  by  that  court,  and  upon  whose  report  its 


^r**^ 


Ch.   4)  JUDGMENl'S.  163 

judg-ment  was  largely  based,  false  and  fraudulent  statements  and  ac- 
counts against  the  defendants,  by  which  the  arbitrator  and  the  French 
courts  were  deceived  and  misled,  and  their  judgments  were  based  upon 
such  false  and  fraudulent  statements  and  accounts.  This  offer,  if  satis- 
factorily proved,  would,  according  to  the  decisions  of  the  English 
court  of  appeal  in  Abouloff  v.  Oppenheimer,  Vadala  v.  Lawes,  arid 
Crozat  V.  Brogden,  above  cited,  be  a  sufficient  ground  for  impeach- 
ing the  foreign  judgment,  and  examining  into  the  merits  of  the  orig- 
inal claim. 

But  whether  those  decisions  can  be  followed  in  regard  to  foreign 
judgments,  consistently  with  our  own  decisions  as  to  impeaching  do- 
mestic judgments  for  fraud,  it  is  unnecessary  in  this  case  to  determine, 
because  there  is  a  distinct  and  independent  ground  upon  which  we  are  j  *-* 

satisfied  that  the  comity  of  our  nation  does  not  require  us  to  give  con-         .    kX^*^ 
elusive  effect  to  the  judgments  of  the  courts  of  France;  and  that    ^iAf/     {\a/^ 
ground  is  the  want  of  reciprocity,  on  the  part  of  France,  as  to  the  ef-       '^ 
feet  to  be  given  to  the  judgments  of  this  and  other  foreign  countries. 

[The  learned  justice  here  examined  the  law  of  France  and  the 
law  of  the  continental  countries  with  respect  to  the  enforcement  of  for- 
eign judgments.] 

It  appears,  therefore,  that  there  is  hardly  a  civilized  nation  on  either 
continent  which,  by  its  general  law,  allows  conclusive  effect  to  an 
executory  foreign  judgment  for  the  recovery  of  money.  In  France 
and  in  a  few  smaller  states — Norway,  Portugal,  Greece,  Monaco,  and 
Hayti — the  merits  of  the  controversy  are  reviewed,  as  of  course, 
allowing  to  the  foreign  judgment,  at  the  most,  no  more  effect  than 
of  being  prima  facie  evidence  of  the  justice  of  the  claim.  In  the  great 
majority  of  the  countries  on  the  continent  of  Europe — in  Belgium, 
Holland,  Denmark,  Sweden,  Germany,  in  many  cantons  of  Switzer- 
land, in  Russia  and  Poland,  in  Roumania,  in  Austria  and  Hungary 
(perhaps  in  Italy),  and  in  Spain — as  well  as  in  Egypt,  in  Mexico,  and 
in  a  great  part  of  South  America,  the  judgment  rendered  in  a  for- 
eign country  is  allowed  the  same  effect  only  as  the  courts  of  that 
country  allow  to  the  judgments  of  the  country  in  which  the  judgment 
in  question  is  sought  to  be  executed. 

The  prediction  of  Mr.  Justice  Story  in  section  618  of  his  Commen- 
taries on  the  Conflict  of  Laws,  already  cited,  has  thus  been  fulfilled, 
and  the  rule  of  reciprocity  has  worked  itself  firmly  into  the  structure 
of  international  jurisprudence. 

The  reasonable,  if  not  the  necessary,  conclusion  appears  to  us  to  be 
that  judgments  rendered  in  France,  or  in  any  other  foreign  country, 
by  the  laws  of  which  our  own  judgments  are  reviewable  upon  the 
merits,  are  not  entitled  to  full  credit  and  conclusive  effect  when  sued 
upon  in  this  country,  but  are  prima  facie  evidence  only  of  the  jus- 
tice of  the  plaintiffs'  claim. 

In  holding  such  a  judgment,  for  want  of  reciprocity,  not  to  be  con- 
clusive evidence  of  the  merits  of  the  claim,  we  do  not  proceed  upon 


164  GENERAL  PROVISIONS.  (Part   1 

any  theory  of  retaliation  upon  one  person  by  reason  of  injustice  done 
to  another,  but  upon  the  broad  ground  that  international  law  is  found- 
ed upon  mutuality  and  reciprocity,  and  that  by  the  principles  of  inter- 
national law  recognized  in  most  civilized  nations,  and  by  the  comity  of 
our  own  country,  which  it  is  our  judicial  duty  to  know  and  to  declare, 
the  judgment  is  not  entitled  to  be  considered  conclusive. 

By  our  law,  at  the  time  of  the  adoption  of  the  constitution,  a  for- 
eign judgment  was  considered  as  prima  facie  evidence,  and  not  con- 
clusive. There  is  no  statute  of  the  United  States,  and  no  treaty  of 
the  United  States  with  France,  or  with  any  other  nation,  which  has 
changed  that  law,  or  has  made  any  provision  upon  the  subject.  It  is 
not  to  be  supposed  that,  if  any  statute  or  treaty  had  been  or  should  be 
made,  it  would  recognize  as  conclusive  the  judgments  of  any  country, 
which  did  not  give  like  effect  to  our  own  judgments.  In  the  absence 
of  statute  or  treaty,  it  appears  to  us  equally  unwarrantable  to  assume 
that  the  comity  of  the  United  States  requires  anything  more. 

If  we  should  hold  this  judgment  to  be  conclusive,  we  should  allow 
it  an  effect  to  which,  supposing  the  defendants'  offers  to  be  sustained 
by  actual  proof,  it  would,  in  the  absence  of  a  special  treaty,  be  entitled 
in  hardly  any  other  country  in  Christendom,  except  the  country  in 
which  it  was  rendered.  If  the  judgment  had  been  rendered  in  this 
country,  or  in  any  other  outside  of  the  jurisdiction  of  France,  the 
French  courts  would  not  have  executed  or  enforced  it,  except  after 
examining  into  its  merits.  The  very  judgment  now  sued  on  would  be 
held  inconclusive  in  almost  any  other  country  than  France.  In  Eng- 
land, and  in  the  colonies  subject  to  the  law  of  England,  the  fraud  al- 
leged in  its  procurement  would  be  a  sufficient  ground  for  disregarding 
it.  In  the  courts  of  nearly  every  other  nation,  it  would  be  subject  to 
re-examination,  either  merely  because  it  was  a  foreign  judgment,  or 
because  judgments  of  that  nation  would  be  re-examinable  in  the 
courts  of  France. 

For  these  reasons,  in  the  action  at  law,  the 

Judgment  is  reversed,  and  the  cause  remanded  to  the  circuit  court, 
with  directions  to  set  aside  the  verdict  and  to  order  a  new  trial. 

For  the  same  reasons,  in  the  suit  in  equity  between  these  parties, 
the  foreign  judgment  is  not  a  bar,  and  therefore  the 

Decree  dismissing  the  bill  is  reversed,  the  plea  adjudged  bad,  and 
the  cause  remanded  to  the  circuit  court  for  further  proceedings  not  in- 
consistent with  this  opinion. 

Fuller,  C.  J.  (dissenting) .  Plaintiffs  brought  their  action  on  a  judg- 
ment recovered  by  them  against  the  defendants  in  the  courts  of  France, 
which  courts  had  jurisdiction  over  person  and  subject-matter,  and 
in  respect  of  which  judgment  no  fraud  was  alleged,  except  in  particu- 
lars contested  in  and  considered  by  the  French  courts.  The  question 
is  whether  under  these  circumstances,  and  in  the  absence  of  a  treaty 
or  act  of  congress,  the  judgment  is  re-examinable  upon  the  merits. 
This  question  I  regard  as  one  to  be  determined  by  the  ordinary  and 


Ch.   4)  JUDGMENTS.  165 

settled  rule  in  respect  of  allowing  a  party  who  has  had  an  opportunity 
to  prove  his  case  in  a  competent  court  to  retry  it  on  the  merits;  and 
it  seems  to  me  that  the  doctrine  of  res  judicata  applicable  to  domestic 
judgments  should  be  applied  to  foreign  judgments  as  well,  and  rests 
on  the  same  general  ground  of  public  policy,  that  there  should  be  an 
end  of  litigation. 

This  application  of  the  doctrine  is  in  accordance  with  our  own 
jurisprudence;  and  it  is  not  necessary  that  we  should  hold  it  to  be 
required  by  some  rule  of  international  law.  The  fundamental  prin- 
ciple concerning  judgments  is  that  disputes  are  finally  determined  by 
them,  and  I  am  unable  to  perceive  why  a  judgment  in  personam,  which 
is  not  open  to  question  on  the  ground  of  want  of  jurisdiction,  either 
intrinsically  or  over  the  parties,  or  of  fraud,  or  on  any  other  recogniz- 
ed ground  of  impeachment,  should  not  be  held,  inter  partes,  though 
recovered  abroad,  conclusive  on  the  merits. 

Judgments  are  executory  while  unpaid,  but  in  this  country  execution 
is  not  given  upon  a  foreign  judgment  as  such,  it  being  enforced 
through  a  new  judgment  obtained  in  an  action  brought  for  that  pur- 
pose. 

The  principle  that  requires  litigation  to  be  treated  as  terminated  by 
final  judgment,  properly  rendered,  is  as  applicable  to  a  judgment  pro- 
ceeded on  in  such  an  action  as  to  any  other,  and  forbids  the  allowance 
to  the  judgment  debtor  of  a  retrial  of  the  original  cause  of  action,  as  of 
right,  in  disregard  of  the  obligation  to  pay  arising  on  the  judgment, 
and  of  the  rights  acquired  by  the  judgment  creditor  thereby. 

That  any  other  conclusion  is  inadmissible  is  forcibly  illustrated  by 
the  case  in  hand.  Plaintiffs  in  error  were  trading  copartners  in  Paris 
as  well  as  in  New  York,  and  had  a  place  of  business  in  Paris  at  the 
time  of  these  transactions  and  of  the  commencement  of  the  suit  against 
them  in  France.  The  subjects  of  the  suit  were  commercial  transactions, 
having  their  origin,  and  partly  performed,  in  France,  under  a  contract 
there  made,  and  alleged  to  be  modified  by  the  dealings  of  the  parties 
there,  and  one  of  the  claims  against  them  was  for  goods  sold  to  them 
there.  They  appeared  generally  in  the  case,  without  protest,  and  by 
counterclaims  relating  to  the  same  general  course  of  business,  a  part  of 
them  only  connected  with  the  claims  against  them,  became  actors  in  the 
suit,  and  submitted  to  the  courts  their  own  claims  for  affirmative  relief, 
as  well  as  the  claims  against  them.  The  courts  were  competent,  and 
they  took  the  chances  of  a  decision  in  their  favor.  As  traders  in 
France  they  were  under  the  protection  of  its  laws,  and  were  bound  by 
its  laws,  its  commercial  usages,  and  its  rules  of  procedure.  The  fact 
that  they  were  Americans  and  the  opposite  parties  were  citizens  of 
France  is  immaterial,  and  there  is  no  suggestion  on  the  record  that 
those  courts  proceeded  on  any  other  ground  than  that  all  litigants, 
whatever  their  nationality,  were  entitled  to  equal  justice  therein.  If 
plaintiffs  in  error  had  succeeded  in  their  cross  suit  and  recovered  judg- 
ment against  defendants  in  error,  and  had  sued  them  here  on  that 


IGG  GENERAL  PROVISIONS.  (Part  1 

judgment,  defendants  in  error  would  not  have  been  permitted  to  say 
that  the  judgment  in  France  was  not  conclusive  against  them.  As  it 
was,  defendants  in  error  recovered,  and  I  think  plaintiffs  in  error 
are  not  entitled  to  try  their  fortune  anew  before  the  courts  of  this 
country  on  the  same  matters  voluntarily  submitted  by  them  to  the 
decision  of  the  foreign  tribunal.  We  are  dealing  with  the  judgment 
of  a  court  of  a  civilized  country,  whose  laws  and  system  of  justice 
recognize  the  general  rules  in  respect  to  property  and  rights  between 
man  and  man  prevailing  among  all  civilized  peoples.  Obviously,  the 
last  persons  who  should  be  heard  to  complain  are  those  who  identified 
themselves  with  the  business  of  that  country,  knowing  that  all  their 
transactions  there  would  be  subject  to  the  local  laws  and  modes  of 
doing  business.  The  French  courts  appear  to  have  acted  "judicially, 
honestly,  and  with  the  intention  to  arrive  at  the  right  conclusion," 
and  a  result  thus  reached  ought  not  to  be  disturbed. 

[After  quoting  from  Nouvion  v.  Freeman,  L.  R.  15  App.  Cas.  1, 
and  Godard  v.  Gray,  L.  R.  6  Q.  B.  139,  the  learned  Chief  Justice  con- 
tinued as  follows:] 

In  any  aspect,  it  is  difficult  to  see  why  rights  acquired  under  foreign 
judgments  do  not  belong  to  the  category  of  private  rights  acquired 
under  foreign  laws.  Now,  the  rule  is  universal  in  this  country  that 
private  rights  acquired  under  the  laws  of  foreign  states  will  be  respect- 
ed and  enforced  in  our  courts  unless  contrary  to  the  policy  or  prejudi- 
cial to  the  interests  of  the  state  where  this  is  sought  to  be  done;  and, 
although  the  source  of  this  rule  may  have  been  the  comity  characteriz- 
ing the  intercourse  between  nations,  it  prevails  to-day  by  its  own 
strength,  and  the  right  to  the  application  of  the  law  to  which  the  par- 
ticular transaction  is  subject  is  a  juridical  right. 

And,  without  going  into  the  refinements  of  the  publicists  on  the 
subject,  it  appears  to  me  that  that  law  finds  authoritative  expression 
in  the  judgments  of  courts  of  competent  jurisdiction  over  parties  and 
subject-matter. 

It  is  held  by  the  majority  of  the  court  that  defendants  cannot  be 
permitted  to  contest  the  validity  and  eft'ect  of  this  judgment  on  the 
general  ground  that  it  was  erroneous  in  law  or  in  fact,  and  the  special 
grounds  relied  on  are  seriatim  rejected.  In  respect  of  the  last  of  these 
— that  of  fraud — it  is  said  that  it  is  unnecessary  in  this  case  to  decide 
whether  certain  decisions  cited  in  regard  to  mipeaching  foreign  judg- 
ments for  fraud  could  be  followed  consistently  with  our  own  decisions 
as  to  impeaching  domestic  judgments  for  that  reason,  "because  there  is 
a  distinct  and  independent  ground  upon  which  we  are  satisfied  that 
the  comity  of  our  nation  does  not  require  us  to  give  conclusive  effect 
to  the  judgments  of  the  courts  of  France,  and  that  ground  is  the  want 
of  reciprocity  on  the  part  of  France  as  to  the  eft'ect  to  be  given  to 
the  judgments  of  this  and  other  foreign  countries."  And  the  con- 
clusion is  announced  to  be  "that  judgments  rendered  in  France,  or  in 
any  other  foreign  country,  by  the  laws  of  which  our  own  judgments 


Ch.    4)  JUDGMENTS.  .  167 

are  reviewable  upon  the  merits,  are  not  entitled  to  full  credit  and  con- 
clusive effect  when  sued  upon  in  this  country,  but  are  prima  facie  evi- 
dence only  of  the  justice  of  the  plaintiff's  claim."  In  other  words,  that, 
although  no  special  ground  exists  for  impeaching  the  original  justice 
of  a  judgment,  such  as  want  of  jurisdiction  or  fraud,  the  right  to  re- 
try the  merits  of  the  original  cause  at  large,  defendant  being  put  upon 
proving  those  merits,  should  be  accorded  in  every  suit  on  judgments 
recovered  in  countries  where  our  own  judgments  are  not  given  full, 
effect,  on  that  ground  merely. 

I  cannot  yield  my  assent  to  the  proposition  that,  because  by  legisla- 
tion and  judicial  decision  in  France  that  effect  is  not  there  given  to 
judgments  recovered  in  this  country  which,  according  to  our  juris- 
prudence, we  think  should  be  given  to  judgments  wherever  recovered 
(subject,  of  course,  to  the  recognized  exceptions),  therefore  we  should 
pursue  the  same  line  of  conduct  as  respects  the  judgments  of  French 
tribunals.  The  application  of  the  doctrine  of  res  judicata  does  not 
rest  in  discretion ;  and  it  is  for  the  government,  and  not  for  its  courts, 
to  adopt  the  principle  of  retorsion,  if  deemed  under  any  circumstances 
desirable  or  necessary. 

As  the  court  expressly  abstains  from  deciding  whether  the  judgment 
is  impeachable  on  the  ground  of  fraud,  I  refrain  from  any  observations 
on  that  branch  of  the  case.^* 

3  4  Harlan,  Brewer,  and  Jackson,  J  J.,  concurred  in  the  dissent. 

CoNTixENTAL  LAW.— a.  1)1  (JCHcruJ. — A  suit  upon  a  foreign  judgment 
will  not  lie,  since  a  judgment  does  not  constitute  a  new  cause  of  action.  16 
R.  G.  427  (June  30,  18S6).  Execution  may  be  had  upon  the  foreign  judgment 
as  such,  provided  it  has  been  declared  executory  by  a  domestic  tribunal.  Ger- 
many, section  722,  Code  Civ.  Proc. ;  France,  section  546,  Coae  Civ.  Proc. ; 
Italy,  section  559,  Code  Civ.  Proc. 

Judgments  concerning  capacity,  status,  and  the  like  require  no  exequatur 
before  being  entitled  to  recognition.  France,  App.  Paris,  April  6,  1903  (D. 
1904,  2.  273) ;  App.  Nancy,  April  25.  18S5  (D.  1S86.  2,  131) :  German ii.  sec- 
tion 328,  Code  Civ.  Proc;  Italy,  App.  Rome,  April  23,  1887  (La  Legge  1888, 
3,  633).  Provided,  however,  no  acts  of  execution  are  in  question.  France, 
Cass.  March  9,  1853  (S.  1853,  1,  269);  Italy,  App.  Milan,  Oct.  13,  3891  (S. 
1892,  4,  29).  But  an  exequatur  may  be  obtained,  thouiich  no  immediate  exe- 
cution is  contemplated.    App.  Turin,  Dec.  9,  1893  (S.  1894,  4,  9). 

Consult,  also,  E.  Bartin,  Etude  sur  les  effets  internatiouaux  des  jugemeuts, 
31  Clunet,  5-39,  802-820;  32  Clunet,  59-95,  815-850;  33  Clunet,  27-47,  995- 
1016;  Ch.  Lachau,  Ti'aites  et  projets  de  traites  internatiouaux  sur  la  com- 
petence judiciaire,  sur  I'autorite  et  I'execution  des  jugements,  2  Darras,  66-93. 

b.  Italy. — According  to  article  941,  Code  Civ.  Proc,  an  Italian  court  is  au- 
thorized to  examine  a  foreign  judgment,  before  declaring  it  executory,  only  in 
the  following  respects:  (1)  whether  the  court  had  jurisdiction ;  (2)  whether 
the  parties  were  regularly  cited;  (3)  whether  the  parties  appeared  or  were 
legally  defaulted;  (4)  whether  the  judgment  contains  anything  contrary  to 
the  public  order  or  the  internal  public  law  of  Italy. 

The  merits  of  the  judgment,  even  in  the  absence  of  reciprocity,  are  not  sub- 
ject to  investigation,  except  by  way  of  retorsion.  See  Cass.  Turin,  March  7, 
1874  (Monitore  1874,  p.  276). 

As  to  judgments  by  default,  consult  App.  G«noa,  March  5.  1892  (Monitore 
1892,  p.  770;   App.  Genoa,  Sept.  5,  1896  (La  Legge.  1896,  2,  004),  and  note. 

Consult,  also,  Charles-Francois  Ansaldi,  De  I'execution  en  Italie  des  juge- 


168  GENERAL  PROVISIONS.  (Part  1 

EASTERN  TOWNSHIP  BANK  v.  H.  S.  BEEBE  &  CO. 

(Supreme  Court  of  Vermont,  1880.    53  Vt  177,  38  Am.  Rep.  6G5.) 

Barrett,  J.^^  It  is  not  claimed  that  the  pendency  of  said  suit  in 
Canada,  where  this  suit  was  brought,  could  bar  a  recovery  in  this  suit. 
It  is  claimed  that  the  judgments  in  said  suit  in  Canada,  rendered  after 
the  bringing  of  this  suit,  bar  a  recovery  in  this  suit.  It  is  not  averred 
or  claimed  that  said  Canadian  judgments  have  been  satisfied  by  pay- 
ment. So  the  only  question  is,  whether  said  Canadian  judgments 
merge  the  cause  of  action,  in  such  a  sense  as  to  render  it  incapable  of 
being  the  subject  of  a  judgment  in  this  suit. 

It  is  not  so  merged  unless  it  has  become  a  debt  of  record,  so  that  the 
record  itself  has  become  a  cause  of  action,  of  its  own  vigor,  to  be  de- 
clared upon  as  such,  and  when  produced,  is  conclusive  of  the  right.  All 
the  authorities  agree  that  a  suit  in  Vermont,  for  getting  satisfaction  of 


ments  strangers  emportant  condamnation  sur  le  simple  d$faut  du  defendeur, 
34  Clunet,  639-647 ;  P.  Fiore,  De  rexecution  des  actes  et  des  jugements 
etrangers  en  Italie,  5  Clunet,  235-247,  6  Clunet,  244-2,50;  G.  Ottoleughi,  De 
I'effet  en  Italie  des  jugements  etrangers  en  matiere  d'etat  et  de  capacite,  29 
Clunet,  760-783. 

c.  Germany. — If  the  conditions  established  by  section  328,  Code  Civ.  Proc., 
exist,  an  exequatur  will  be  granted  without  a  re-investigation  of  the  merits 
even  in  the  absence  of  treaty.  One  of  the  conditions  is  that  reciprocity  must 
be  "guaranteed"  with  respect  to  the  liind  of  judgment  in  question.  R.  G.  Feb. 
15,  1901  (11  Niemeyer,  88).  As  to  when  reciprocity  is  guaranteed,  see  7  R. 
G.  406  (May  19,  1882) ;  21  R.  O.  H.  G.  11  (June  3,  1876) ;  R.  G.  April  7, 
1888  (44  Seuffert's  Archiv,  111). 

Consult,  also,  L.  Fnld,  Ausl.'lndisehe  Urteile  und  die  deutsche  Zivilprozes- 
sordnung,  8  Niemeyer,  369-384 ;  J.  Keidel,  De  la  reconnaissance  et  de  I'ex- 
ecution  des  jugements  etrangers  en  AUemagne,  26  Clunet,  663-687 ;  Keyssner 
&  L.  Beauchet,  Questions  relatives  a.  I'execution  des  jugements  etrangers  en 
AUemagne,  10  Clunet,  239-247;  Keyssner,  De  I'execution  des  jugements 
etrangers  dans  I'empire  d'Allemagne,  9  Clunet,  2.5-37 ;  Max  Klein,  Das  Er- 
fordernis  der  verblirgten  Gegenseitigkeit  bei  Vollstreckung  ausliindischer  Ur- 
teile in  Deutschlaud,  9  Niemeyer,  206-242;  6  Niemeyer,  97-133;  7  Niemeyer, 
?.23-327;  Max  Klein,  Bemerlvungen  zu  der  Frage,  ob  hinsichtlich  der  zur  Voll- 
streckung zu  bringenden  Entscheidungen  deutscher  Gerichte  in  England  die 
Gegenseitigkeit  verbiirgt  erscheint.  6  Niemeyer,  .398-402. 

d.  France. — French  courts  do  not  apply  the  doctrine  of  reciprocity,  but.  In 
the  absence  of  treaty,  will  re-examine  the  merits  of  a  foreign  judgment  be- 
fore declaring  it  executory.  Cass.  June  28,  1881  (S.  1882,  1,  33) ;  Cass.  Feb. 
9,  1892  (S.  1892,  1,  201);    Cass.  Dec.  9,  1903  (D.  1906,  1,  354). 

As  to  how  far  such  a  foreign  judgment  is  subject  to  review,  see  App.  Nancy, 
July  6,  1877  (S.  1878,  2,  129)  ;    App.  Paris,  Feb.  20,  1908  (4  Darras,  636). 

After  the  granting  of  the  exequatur  the  foreign  judgment  will,  upon  proper 
allegations,  produce  the  same  effect  as  it  would  have  in  the  country  where  it 
was  rendered.  Cass.  Feb.  1892  (S.  1892,  1,  201) ;  App.  Paris,  April  20,  1905 
(1  Darras,  344). 

Consult,  also,  Chr.  Daguin,  De  I'execution  des  jugements  etrangers  en 
France,  15  Clunet,  33-42;  16  Clunet,  39-59;  A.  Laine,  De  I'execution  en 
France  des  sentences  arbitrales  etrangercs,  26  Clunet,  641-654;  A.  Weiss,  De 
I'execution  des  sentences  arbitrales  etrangrres  en  France,  2  Darras,  34-48. 

38  The  statement  of  facts  has  been  omitted. 


Ch.  4)  JUDGMENTS.  169 

the  Canadian  judgment,  must  be  an  action  of  assumpsit,  counting  upon 
an  implied  promise,  arising  from  the  fact  of  the  existence  of  such  judg- 
ment. 

It  is  held  in  the  cases  that  a  foreign  judgment  when  shown  in  evi- 
dence upon  a  matter  within  the  jurisdiction  of  the  court,  and  in  which 
the  court  had  jurisdiction  of  the  parties,  so  that  they  were  personally 
bound  by  the  judgment,  in  the  country  where  rendered,  is  conclusive 
upon  the  matter  therein  adjudicated.  But  it  at  the  same  time  is  held 
that  the  original  cause  of  action  is  not  so  merged  by  that  judgment  that 
it  is  incapable  of  being  the  subject  of  a  suit  in  a  country  foreign  to 
that  in  which  the  judgment  was  recovered. 

The  books  are  uniform  in  making  the  distinction  between  merger  of 
the  cause  of  action  and  conclusiveness  of  effect,  as  matter  of  evidence, 
when  the  effect  of  a  foreign  judgment  is  brought  in  question  in  a  suit 
upon  the  same  original  cause  of  action. 

Whatever  may  be  the  reason  for  such  distinction,  it  exists,  and  is 
established  as  a  rule  of  law;  and  we  see  no  occasion  for  annulling  that 
rule  in  this  state.  In  the  many  cases  in  which  the  subject  of  judgments 
as  between  the  different  states  of  the  Union  has  been  discussed  and  de- 
termined, the  theory  and  logic  have  rested  upon  the  provision  of  Const. 
U.  S.  art.  -i,  §  1,  as  to  the  faith  and  credit  to  be  given  to  judgments 
of  one  state  in  the  other  states ;  and  in  all  the  cases  it  is  assumed  that 
but  for  such  provision  such  judgments  would  not  have  that  faith  and 
credit,  and  would  be  foreign  judgments.  A  specimen  case  of  this  kind  is 
McGilvray  v.  Avery,  30  Vt.  538,  in  which  the  very  able  opinion  drawn 
up  by  Judge  Bennett,  presents  the  established  doctrine,  and  marks 
the  true  distinctions. 

It  is  fundamental  that  a  foreign  judgment  does  not  constitute  a  record 
debt,  but  is  only  evidence  of  obligation  to  pay.  The  indebtedness  evi- 
denced by  a  foreign  judgment  as  a  cause  of  action  to  be  declared  on,  as 
the  ground  of  recovery  is  that  of  simple  contract,  and  the  subject  for  a 
suit  in  assumpsit.  In  this  case  then  the  judgment  in  Canada,  as  a 
cause  of  action,  is  of  no  higher  grade  than  the  notes  themselves.  This 
legal  fact  is  conclusive  against  the  idea  of  the  notes  as  a  cause  of  action 
being  merged  by  that  judgment.  It  leaves  that  judgment  as  an  instru- 
ment or  means  of  evidence,  showing  conclusively  the  fact  of  indebted- 
ness, and  operating  conclusively  to  that  effect  until  satisfied.  It  is  not 
the  judgment,  but  the  satisfaction  of  it,  that  renders  it  a  bar  to  a  re- 
covery in  the  domestic  government  upon  the  original  cause  of  action. 
This  is  in  harmony  with  the  conclusive  effect  given  to  a  foreign  judg- 
ment in  favor  of  the  defendant.  The  fact  of  such  judgment  is  pleaded 
in  bar,  and  is  adduced  as  evidence  to  maintain  the  plea.  This  is  the 
same,  mutatis  mutandis,  as  adducing  the  fact  of  a  foreign  judgment 
for  the  plaintiff  to  maintain  his  right  of  recovery  against  the  defend- 
ants in  his  action  of  assumpsit  upon  that  judgment.  The  confusion  on 
this  subject  seems  to  result  from  not  distinguishing  between  a  domestic 


170  GENERAL  PROVISIONS.  (Part  1 

judgment  as  constituting  of  itself  a  debt  of  record  and  a  foreign  judg- 
ment, which  is  only  evidence  of  an  indebtedness  as  upon  a  simple  con- 
tract. 

Judgment  reversed  and  cause  remanded.^® 


MacDONALD  v.  GRAND  TRUNK  R.  CO. 

(Supreme  Court  of  New  Hampshire,  1902.     71  N.  H.  448,  52  Atl.  982,  59  L.  R. 
A.  448,  93  Am.  St.  Rep.  550.) 

Case  to  recover  the  value  of  goods  destroyed  by  fire,  through  the 
defendants'  negligence,  while  in  their  possession  as  common  carriers. 
The  pleadings  and  facts  agreed  by  the  parties  were  as  follows :  The 
goods  in  question  were  shipped  upon  the  Allan  steamship  Sarma- 
tian,  at  Glasgow,  Scotland,  under  a  bill  of  lading  which  was  made 
a  part  of  the  case,  for  transportation  to  Toronto,  Canada.  The  goods 
were  received  by  the  defendants  at  Portland,  Me.,  for  transporta- 
tion upon  the  terms  of  the  original  bill  of  lading.  While  in  trans- 
portation across  this  state,  they  were  destroyed  by  fire  resulting  from 
a  collision  caused  by  the  defendants'  negligence.  The  goods  were 
insured  with  the  Mannheim  Insurance  Company,  which  has  paid  the 
plaintiffs,  MacDonald  &  Co.,  their  value,  $2,469.50.  Prior  to  the 
commencement  of  this  action,  the  consignees,  who  are  residents  of 
Toronto,  and  the  insurance  company,  brought  suit  before  the  high 
court  of  justice  in  the  dominion  of  Canada,  against  the  defendants, 
in  which  the  present  plaintiffs  claimed  to  recover  of  the  present  de- 
fendants for  the  loss  of  the  goods  in  question;  and  in  that  action, 
after  hearing,  judgment  was  rendered  in  favor  of  the  defendants. 
The  high  court  of  justice  is  a  court  of  record  of  general  jurisdic- 
tion. It  had  jurisdiction  of  the  parties  to  the  action  and  of  the  sub- 
ject-matter of  the  case,  and  the  judgment  rendered  was  a  judgment 
upon  the  merits  of  the  issue  presented,  and  is  not  reversed.  The  de- 
fendants pleaded  the  judgment  in  bar  of  this  action,  and  also  plead- 
ed that,  by  the  terms  of  the  bill  of  lading,  they  were  protected  from 
liability  for  loss  from  fire,  whether  due  to  their  own  negligence  or  oth- 
erwise, and  from  liability  for  any  loss  which  could  be  covered  by  in- 

scAccord:  Bank  of  Australasia  v.  Harding  [IS.-.O]  9  C.  B.  GGl ;  Smith  v. 
NicoUs,  5  Bing.  N.  C.  208  (1839)  ;  Wood  v.  Gamble,  11  Gush.  (Mass.)  8,  59 
Am.  Dec.  135  (1853) ;  Black  on  Judgments  (2d  Ed.)  §  847.  Germany,  16  R. 
G.  427  (June  30,  188G).  Contra:  Herman  on  Estoppel  and  Res  Judicata,  §  498. 
An  intermediate  position  has  been  taken  by  Alaska  Commercial  Co.  v.  Debney, 
2  Alaska,  303  (1904),  where  it  is  held  that  under  the  decision  of  Hilton  v. 
Guyot,  159  U.  S.  113,  16  Sup.  Ct.  139,  40  L.  Ed.  95  (1895),  a  foreign  judg- 
ment which  is  enforceable  in  this  country  will  operate  also  as  a  merger  of  the 
cause  of  action.     See,  also,  Piggott  on  Foreign  Judgments,  27-32. 

If  payment  is  accepted  under  such  foreign  judgment,  no  suit  will  lie  for 
the  recoveiy  of  any  balance  alleged  to  be  due  upon  the  original  cause  of  ac- 
tion.    Taylor  v.  Ilollard  [1902]  1  K.  B.  07G. 


Cil.  4)  JUDGMENTS.  171 

surance.     The  pleadings  and  record  in  the  suit  referred  to  were  made 
a  part  of  the  case. 

Parsons,  J.^'  The  plaintiffs,  prior  to  the  commencement  of  this 
suit,  vokmtarily  submitted  the  claim  which  they  now  make  against 
the  defendants — their  right  to  damages  for  the  negligent  destruc- 
tion of  their  property  while  in  the  hands  of  the  defendants  as  com- 
mon carriers — to  a  judicial  tribunal  established  by  the  government 
of  which  they  were  citizens,  and  to  whose  decrees  they  owe  obedi- 
ience.  The  tribunal  to  which  they  appealed  was  a  court  of  rec- 
ord of  general  jurisdiction;  it  had  jurisdiction  of  the  parties  and 
of  the  subject-matter  of  the  controversy.  Both  parties  appeared 
and  were  heard;  the  plaintiffs  had  full  opportunity  to  present 
such  matters  of  fact,  and  to  argue  such  propositions  of  law,  as  they 
deemed  essential  to  their  case.  The  judgment  was  upon  the  merits, 
and  against  the  plaintiffs.  It  is  not  claimed  that,  by  any  erroneous 
ruling  of  the  court,  the  plaintiffs  were  prevented  from  fully  and  fair- 
ly presenting  their  case.  Nor  is  it  suggested  that  the  court  erred 
in  its  decision  of  the  legal  question  which  the  parties  considered  de- 
cisive of  their  rights.  No  accident  or  mistake  on  the  part  of  the  plain- 
tiffs in  the  presentation  of  their  case  is  suggested.  Fraud  is  not  charg- 
ed. It  is  apparent  that,  if  the  plaintiffs'  claims  had  been  sustained 
in  Canada,  the  defendants  would  have  been  bound  by  the  result,  and 
would  have  been  compelled  to  satisfy  any  judgment  that  might  there 
have  been  obtained  against  them.  Is  there  any  reason  why  the  plain- 
tiffs, having  compelled  the  defendants  to  litigate  the  claim  made  in  this 
suit  before  a  tribunal  of  the  plaintiffs'  selection,  and  having  sufferecj 
defeat  without  fraud,  accident,  or  mistake,  and  after  a  fair  hearing,  by 
the  results  of  which  the  defendants  were  necessarily  bound,  should  not 
also  be  everywhere  bound  by  the  judicial  determination  which  they 
invoked,  and  be  estopped  from  presenting  before  any  other  tribunal  the 
claim  once  judicially  decided  against  them?  The  judgment  in  Canada 
was  final,  and  is  not  reversed.  It  is  conclusive  against  the  plaintiffs  in 
their  own  country.  As  an  expression  of  the  will  of  the  sovereign  to 
whom  their  allegiance  is  due,  they  owe  obedience  thereto  abroad  as 
well  as  at  home.  Upon  every  ground  of  natural  right  and  justice,  it 
would  seem  that  they  should  be  debarred  from  invading  the  courts  of 
another  country  to  retry  a  controversy  settled  against  them  at  home. 

H:        H<        :K 

It  is  urged  that  a  foreign  judgment,  though  admissible  in  evidence, 
is  not  conclusive,  but  is  merely  prima  facie  evidence.  Support  for 
this  proposition  is  to  be  found  in  early  English  cases  and  dicta  where 
the  judgment  was  offered  as  evidence  of  debt  in  an  action  to  recover 
the  amount  found  due  by  the  former  judgment.  In  Phillips  v.  Hun- 
ter (1795)  2  H.  Bl.  402,  410,  a  distinction  was  made  by  Lord  Chief 
Justice  Eyre  between  cases  where  a  judgment  was  brought  before 

87A  part  of  the  opinion  has  been  omitted. 


172  GENERAL  PROVISIONS.  (Part  1 

an  English  court,  upon  the  appHcation  of  a  successful  party,  to  en- 
force and  obtain  the  fruits  of  it  against  the  defendant,  and  those 
cases  where  the  defendant  sets  up  the  foreign  judgment  as  a  bar  to 
a  new  suit  with  reference  to  the  former  subject-matter.  "It  is  in  one 
way  only,"  he  said,  "that  the  sentence  or  judgment  of  the  court  of 
a  foreign  state  is  examinable  in  our  courts,  and  that  is,  when  the 
party  who  claims  the  benefit  of  it  applies  to  our  courts  to  enforce  it. 
*  *  *  In  all  other  cases,  we  give  entire  faith  and  credit  to  the 
sentences  of  foreign  courts,  and  consider  them  as  conclusive  upon  us." 
The  latter  statement  does  not  appear  to  have  been  questioned  in  Eng- 
land. Burrows  v.  Jemino,  2  Strange,  733 ;  Boucher  v.  Lawson, 
Hardw.  Cas.  temp.  85,  87,  89;  Barber  v.  Lamb,  8  C.  B.  (N.  S.)  95; 
Ricardo  v.  Garcias,  12  Clark  &  E.  368.  The  distinction  has,  how- 
ever, been  abandoned,  and  foreign  judgments  are  not  now  held  ex- 
aminable there  to  the  extent  suggested  by  Chief  Justice  Eyre.  Bank 
v.  Nias,  16  Adol.  &  E.  717 ;  Scott  v.  Pilkington,  2  Best  &  S.  11 ;  God- 
ard  V.  Gray,  L.  R.  6  Q.  B.  139. 

At  the  time  of  the  Revolution,  it  appears  to  have  been  understood, 
as  the  law  of  England,  that  a  judgment  offered  as  evidence  of  a  debt, 
in  an  action  by  the  plaintiff  to  obtain  its  fruit,  was  merely  prima  facie 
evidence,  and  examinable  upon  the  merits.  Hilton  v.  Guyot,  159 
U.  S.  113,  187,  16  Sup.  Ct.  139,  40  L.  Ed.  95.  This  view  was  fol- 
lowed by  the  early  American  cases,  among  which  is  the  case  of  Rob- 
inson v.  Prescott,  4  N.  H.  450,  and  to  this  view  is  to  be  ascribed  the 
expressions  found  in  Bryant  v.  Ela,  Smith,  396,  404;  Thurber  v. 
Blackbourne,  1  N.  H.  242,  243 ;  Taylor  v.  Barron,  30  N.  H.  78,  95, 
64  Am.  Dec.  281.  The  American  cases,  however,  adopted  in  full 
the  distinction  made  in  Phillips  v.  Hunter,  which,  it  is  said  by  Story, 
"has  been  very  frequently  recognized  as  having  a  just  foundation  in 
international  justice,"  upon  the  ground  that  where  a  defendant  sets 
up  a  foreign  judgment  as  a  bar  to  the  proceedings,  "if  it  has  been 
pronounced  by  a  competent  tribunal,  and  carried  into  efifect,  the  los- 
ing party  has  no  right  to  institute  a  new  suit  elsewhere,  and  thus  to 
bring  the  matter  again  into  controversy;  and  the  other  party  is  not 
to  lose  the  protection  which  the  foreign  judgment  gave  him.  It  is 
then  res  judicata,  which  ought  to  be  received  as  conclusive  evidence 
of  right;  and  the  exceptio  rei  judicatae  under  such  circumstances 
is  entitled  to  universal  conclusiveness  and  respect."  Story,  Confl. 
Laws,  §  598;  2  Kent,  Comm.  120.  See  Bigelow,  Estop.  196-203; 
Freem.  Judgm.  §  592;   Black,  Judgm.  §  228;  Dicey,  Confl.  Laws,  417. 

It  has  been  said  that  "all  the  American  cases  agree  that,  where 
a  foreign  judgment  comes  incidently  in  question,  it  is  conclusive" 
(Cummings  v.  Banks,  2  Barb.  [N.  Y.]  602,  605)  ;  and  that  "it  is  an 
established  rule  that  a  foreign  judgment,  when  used  by  way  of  de- 
fense, is  as  conclusive  to  every  intent  as  those  of  our  own  courts" 
(Griswold  v.  Pitcairn,  2  Conn.  85,  92).  "Foreign  judgments  are  nev- 
er re-examined  unless  the  aid  of  our  courts  is  asked  to  carry  them 


Ch.  4)  JUDGMENTS.  173 

into  effect  by  a  direct  suit  upon  the  judgment.  The  foreign  judg- 
ment is  then  held  to  be  onh^  prima  facie  evidence  of  the  demand; 
but  when  it  comes  in  collaterally,  or  the  defendant  relies  upon  it  un- 
der the  exceptio  rei  judicatse,  it  is  then  received  as  conclusive."  Kent, 
C.  J.,  Smith  V.  Lewis,  3  Johns.  (N.  Y.)  157,  169,  3  Am.  Dec.  469; 
Monroe  v.  Douglas,  4  Sand.  Ch.  (N.  Y.)  126,  181;  Williams  v.  Pres- 
ton, 3  J.  J.  Marsh.  (Ky.)  600,  20  Am.  Dec.  179.  Burnham  v.  Webster, 
1  Woodb.  &  M.  (U.  S.)  172,  Fed.  Cas.  No.  2,179,  appears  to  be  the 
only  American  case  which  questions  the  conclusiveness  of  a  foreign 
judgment  offered  as  a  defense.  The  general  expressions  used  by  the 
distinguished  author  of  the  opinion  in  that  case,  if  carried  out,  would 
render  a  foreign  judgment  of  little  value,  and  would,  it  has  been  said, 
"destroy  the  force  and  effect  of  judicial  proceedings,  and  make  the 
judgments  of  a  foreign^tribunal,  no  matter  how  high  its  rank,  or  how 
binding  its  decisions,  within  its  own  jurisdiction,  of  little  greater  effect 
than  the  original  contract  or  promise  sued  upon."  McMullen  v.  Rit- 
chie (C.  C.)  41  Fed.  502,  8  L.  R.  A.  268.  But  the  precise  point  in  the 
case  to  which  the  decision  is  expressly  limited  is  not  in  opposition  to  but 
in  support  of  the  general  ground  upon  which  the  foreign  judgment 
has  been  held  conclusive.  In  that  case,  in  answer  to  a  suit  upon  a 
promissory  note,  the  defendant  oft'ered  a  judgment  in  a  suit  in  New 
Brunswick,  in  which  the  plaintiff  declared  upon  the  note  then  in  suit, 
with  others,  and  had  judgment  only  for  the  others.  The  plaintiff 
offered  to  prove  that,  before  the  former  case  was  submitted  to  the 
jury,  the  note  then  in  suit  was  by  agreement  withdrawn,  and  was 
not  submitted  to  the  jury,  but  by  mistake  the  counts  upon  this  note 
were  not  struck  from  the  declaration  before  judgment.  The  evidence, 
if  true  and  admissible,  established  that  the  former  judgment  was  not 
an  adjudication  as  to  the  note  in  suit,  and  the  only  point  in  fact  de- 
cided was  that  the  plaintiff  could  show  what  was  in  fact  adjudicated 
in  the  former  suit.  Hohner  v.  Gratz  (C.  C.)  50  Fed.  369,  is  within 
the  general  exception  that  rights  under  a  foreign  law  will  not  be  en- 
forced to  the  injury  of  the  citizens  of  the  forum.  The  subject-mat- 
ter and  the  parties  in  the  two  suits  were  different,  and  the  principle 
of  res  judicata  did  not  applv.  Dunstan  v.  Higgins,  20  L.  R.  A.  677, 
note  (s.  c.  138  N.  Y.  70,  33  N.  E.  729,  34  Am.  St.  Rep.  431). 

Both  upon  reason  and  all  the  authorities,  it  is  clear  that  a  plea  of 
former  adjudication,  except  as  a  merger  of  a  cause  of  action,  is  sus- 
tained by  proof  of  such  adjudication  in  a  foreign  as  well  as  a  domes- 
tic tribunal.  The  Supreme  Court  of  the  United  States,  by  a  bare 
majority,  has  considered  that  the  effect  to  be  given  to  a  foreign  judg- 
ment is  determined  by  the  treatment  given  our  judgments  in  the  courts 
of  the  country  whose  judgment  is  under  consideration ;  that  courts 
are  required  to  do,  not  as  justice  and  reason  require,  but  as  they  are 
done  by.  Hilton  v.  Guyot,  159  U.  S.  113,  16  Sup.  Ct.  139,  40  L. 
Ed.  95.  But  this  question  does  not  arise  here,  because  the  courts  of 
Ontario  hold  judgments  of  courts  of   the  United   States  conclusive 


.174  GENERAL  PROVISIONS.  (Part  1 

upon  the  merits.  Ritchie  v.  McMnllen,  159  U.  S.  235,  16  Sup.  Ct 
171,  40  L.  Ed.  133;  Fowler  v.  Vail,  27  U.  C.  C.  P.  417,  4  Ont.  App 
267.  The  contrary  contention  of  the  plaintiffs  is  founded  upon  ear- 
lier cases  based  upon  a  statute  (23  Vict.  c.  24,  §  1)  which  was  repealed 
by  39  Vict.  (1875,  1876)  c.  7.    Fowler  v.  Vail,  supra. 

The  effect  of  a  foreign  judgment  upon  the  same  subject-matter,  as 
establishing  the  defense  of  res  judicata,  is  the  only  question  now  in- 
volved. The  tendency  of  the  later  American  cases  seems  to  be  to 
follow  the  modern  English  doctrine  as  to  foreign  judgments  gen- 
erally. Rankin  v.  Goddard,  54  Me.  28,  89  Am.  Dec.  718;  Id.,  55 
Me.  389;  Fisher  v.  Fielding.  67  Conn.  91.  34  Atl.  714.  32  L.  R  A. 
236,  52  Am.  St.  Rep.  270;  Lazier  v.  Westcott,  26  N.  Y.  146,  82  Am. 
Dec.  404;  Dunstan  v.  Higgins,  138  N.  Y.  70,  33  N.  E.  729,  20  L.  R. 
A.  668,  34  Am.  St.  Rep.  431;  Baker  v.  Palmer,  83  111.  568;  Roth 
V.  Roth,  104  111.  35,  44  Am.  Rep.  81;  Hilton  v!  Guyot,  supra;  Ritchie 
V.  McMullen,  supra;  5  Eng.  R.  Cas.  746;  1  Freem.  Judgm.  §  597. 
To  what  extent  the  doctrine  of  these  cases  is  the  law  of  this  state, 
need  not  now  be  determined.  It  is  stated  as  a  fact  agr,eed  that  the  judg- 
ment pleaded  was  upon  the  merits  of  the  issue  presented.  The  is- 
sue presented  in  that  case,  as  in  this,  was  the  defendants'  liability  for 
the  destruction  of  the  plaintiffs'  property.  It  may  be  the  fact  was 
agreed  with  a  different  understanding  by  one  of  the  parties,  at  least,  as 
to  what  was  the  issue  presented  by  the  case.  But,  regardless  of  the 
agreed  fact,  it  is  apparent  from  the  facts  stated  that  the  judgment 
was  upon  the  merits,  and  was  an  adjudication  of  the  plaintiifs'  rig'ht 
to  recover  the  damages  claimed  in  this  suit.  The  plaintiffs  were  not 
defeated  because  the  action  which  they  brought  was  not  a  legal  rem- 
edy for  the  wrong  claimed  (Kittredge  v.  Holt,  58  N.  H.  191),  nor 
upon  the  ground  that  the  form  of  their  action  was  misconceived  (Mer- 
edith Mechanic  Ass'n  v.  American  Twist  Drill  Co.,  67  N.  H.  450, 
39  Atl.  330),  but  upon  the  merits  of  their  claim.  The  matter  upon 
which  they  proceeded  by  their  declaration,  and  which  the  defend- 
ants denied  by  their  plea,  was  the  defendants'  liability  for  the  loss 
complained  of.  This  was  the  issue.  King  v.  Chase,  15  N.  H.  9,  41 
Am.  Dec.  675;  Metcalf  v.  Gilmore,  63  N.  H.  174.  The  decision  of 
this  question,  when  the  same  question  as  to  the  same  goods  is  again 
raised,  concludes  all  matters  of  fact  or  law  which  were  or  might  have 
been  proved  or  urged  in  support  of  or  against  the  decision  reached. 
Metcalf  V.  Gilmore,  63  N.  H.  189. 

If  the  plaintiffs,  in  the  exigencies  of  their  case  as  then  presented, 
and  in  view  of  their  claim  that  the  question  was  determined  by  the 
Canadian  statute,  thought  it  wise  not  to  offer  proof  of  New  Hamp- 
shire law,  they  must  abide  by  the  result  so  long  as  that  judgment  re- 
mains unreversed.  If  the  result  was  due  to  accident,  mistake,  or  mis- 
fortune, which  is  not  claimed,  the  proper  tribunal  in  which  relief  should 
be  sought  would  seem  to  be  the  high  court  of  justice  of  Ontario.  A 
foreign  law  will  not  be  given  effect  when  it  contravenes  some  estab- 


Ch.  4)  JUDGMENTS.  175 

lished  and  important  policy  of  the  state  of  the  forum,  or  would  in- 
volve injustice  and  injury  to  the  people,  of  the  state  whose  courts  are 
appealed  to.  Minor,  Confl.  Laws,  9 ;  Story,  Confl.  Laws,  §  38.  It 
is  urged  that  the  policy  of  this  state  does  not  permit  common  carriers 
to  release  themselves  from  liability  for  negligence.  Assuming  this 
to  be  so,  it  only  follows  that,  in  rendering  the  judgment,  a  mistake 
was  made  as  to  the  law  of  New  Hampshire,  which  does  not  detract 
from  the  force  of  the  judgment  as  an  adjudication,  especially  when, 
as  in  this  case,  the  court  is  led  into  error  by  the  failure  of  the  com- 
plaining parties  to  inform  it  as  to  the  foreign  law.  Godard  v.  Gray, 
L.  R.  6  O.  B.  139,  5  Eng.  R.  C.  726.  A  domestic  judgment  pleaded 
could  not  be  answered  by  an  averment  that  it  was-  founded  upon  a 
mistaken  admission  of  the  parties  as  to  the  law.  There  is  no  reason 
why  such  an  averment  should  avail  against  a  foreign  judgment.  The 
plaintiffs  are  not  citizens  of  this  state.  The  defendants  are  sued  here 
because  found  here.  Their  presence  in  this  state  is  authorized  by  law. 
In  a  sense,  they  are  citizens  here.  Public  policy,  which  forbids  an 
application  of  the  principles  of  comity  toward  the  subjects  or  laws  of 
a  foreign  country  to  the  injury  of  our  own  citizens,  for  this  reason 
protects  the  citizens  of  the  state  from  repeated  suits  upon  the  same 
matter.  A  citizen  who  has  been  compelled  to  litigate  a  matter  in  a 
foreign  country,  and  take  there  the  chance  of  an  unfavorable  decision, 
ought  not  to  be  again  required  to  litigate  the  same  question  at  home. 
A  rule  of  public  policy  for  the  protection  of  the  citizen  cannot  proper- 
ly be  applied  to  do  injustice  to  him.  Upon  the  question  raised  as  to 
the  validity  of  the  contract  releasing  the  defendants  from  liability  for 
negligence,  no  opinion  is  expressed.  The  defendants'  plea  of  former 
adjudication  states  a  defense  to  this  action.  Upon  the  facts  stated, 
they  are  entitled  to  judgment. 

Judgment  for  the  defendants.    All  concurred.^^ 

3  8  CoxTijyENTAL  LAW. — Reciprocity  is  required  in  Germany,  also,  for  the 
recognition  of  foreign  judgments  as  res  judicata.  8  R.  G.  385  (Jan.  29,  1883). 
Contra :  France  and  Italy.  Most  French  courts  require  an  exequatur  of  the 
foreign  judgment,  however.  Cass.  July  21,  1903  (S.  1903,  1,  449),  and  note. 
But  not  so  the  Itfllian  courts.  Cass.  Naples,  Dec.  17,  1900  (Monitore  1901,  p. 
368).    But  see  App.  ^Milan.  May  4,  1906  (Clunet,  1906,  p.  1233). 

See.  also,  B.  Richard.  Die  exceptio  rei  judicatte  aus  einem  ausliindisehen 
Urteile  nach  deutschem  Reichsrecht,  3  Niemeyer,  10-48. 


176  GENERAL  PROVISIONS.  (Part  1 

CHAPTER  V. 

DOMICILE. 


SECTION  1.— IN  GENERAi;. 


WINANS  V.  ATTORNEY  GENERAU. 

(House  of  Lords,  L.  R.  [1904]  App.  Has.  ^T,  7" 


William  Louis  Winans  was  born  in  the  United  States  in  1823.  In 
1859  he  came  to  England  and  lived  there  in  various  places  until  his 
death  in  1897.  By  his  will  he  bequeathed  an  annuity  to  a  relative, 
and  the  question  in  this  appeal  was  whether  he  was  at  his  death  dom- 
iciled in  England.  If  he  was,  legacy  duty  was  payable;  otherwise 
not.  The  Attorney  General  having  filed  an  information  against  the 
appellants  (who  were  the  executors)  to  recover  the  duty,  Kennedy 
and  Phillimore,  JJ.,  held  that  the  testator  was  at  his  decease  domicil- 
ed in  England  and  that  the  duty  was  payable.  This  decision  was  af- 
firmed by  the  Court  of  Appeal  (Collins,  M.  R.,  and  Stirling  and  Math- 
ew,  L.  JJ.).     Hence  this  appeal. 

Lord  Macnaghten.^  My  Lords,  there  is,  I  think,  hardly  any 
branch  of  law  which  has  been  more  frequently  or  more  fully  discuss- 
ed in  this  House  in  comparatively  modern  times  than  the  law  of  dom- 
icile. Difficulties  have  arisen,  and  difficulties  must  arise  now  and  then, 
in  coming  to  a  conclusion  upon  the  facts  of  a  particular  case.  But 
those  difficulties,  as  Lord  Cottenham  said,  are  "much  diminished  by 
keeping  steadily  in  view  the  principle  which  ought  to  guide  the  de- 
cision as  to  the  application  of  the  facts." 

Domicile  of  origin,  or  as  it  is  sometimes-  called,  4)erhaps  less  ac- 
curately, "domicile  of  birth,"  differs  from  domicile  of  choice  mainly 
in  this — that  its  character  is  more  enduring,  its  hold  stronger,  and- 
less  easily  shaken  off. 

In  Munro  v.  Munro  (1840)  7  CI.  &  F.  8TG,  51  R.  R.  103,  Lord  Cot- 
tenham observed  that  it  was  one  of  the  principles  adopted,  not  only 
by  the  law  of  England,  but  generally  by  the  laws  of  other  countries, 
"that  the  domicile  of  origin  must  prevail  until  the  party  has  not  on- 
ly acquired  another,  but  has  manifested  and  carried  into  execution 
an  intention  of  abandoning  his  former  domicile  and  acquiring  an- 
other as  his  sole  domicile.     *     *     *     Residence  alone,"  he  adds,  "has 

1  The  opinion  of  the  Lord  Chancellor  and  a  part  of  the  opinion  of  Lord 
Lindley  have  been  omitted. 


Ch.    5)  DOMICILE.  177 

no  effect  per  se,  though  it  may  be  most  important  as  a  ground  from 
"wlrich'  f o  infer  intention."  "The  law,"  said  Lord  Cairns,  L.  C,  in 
Bell  V.  Kennedy  (1868)  L.  R.  1  H.  L.  Sc.  310,  "is  beyond  all  doubt 
clear  with  regard  to  the  domicile  of  birth  that  the  personal  status  in- 
dicated by  that  term  clings  and  adheres  to  the  subject  of  it  until  an 
actual  change  is  made  by  which  the  personal  status  of  another  dom-       .  ",        J  j^. 

icile  is  acquired."    The  onus  of  proving  that  a  domicile  has  been  chosen  '  .>y':  '    ' 
in  substitution  for  the  domicile  of  origin  lies  upon  those  who  assert        i 
that  the  domicile  of  origin  has  been  lost. 

"Residence  and  domicile,"  as  I^ord  Westbury  points  out  (L,.  R.  1 
H.  L.  Sc.  320,  at  page  321),  "are  two  perfectly  distinct  things.  *  *  * 
Although  residence  may  be  some  small  prima  facie  proof  of  domicile, 
it  is  by  no  means  to  be  inferred  from  the  fact  of  residence  that  dom- 
icile results,  even  although  you  do  not  find  the  party  had  any  other 
residence  in  existence  or  in  contemplation."  Lord  Chelmsford's  opin- 
ion—Udny  V.  Udny  (1869)  L.  R.  1  H.  L.  Sc.  455— was  that  "in  a 
competition  between  a  domicile  of  origin  and  an  alleged  subsequent- ' 
ly  acquired  domicile  there  may  be  circumstances  to  show  that  how- 
ever long  a  residence  may  have  continued,  no  intention  of  acquiring 
a  domicile  may  have  existed  at  any  one  moment  during  the  whole 
of  the  continuance  of  such  residence.  The  question  in  such  a  case 
is  not  whether  there  is  evidence  of  an  intention  to  retain  the  domicile 
of  origin,  but  whether  it  is  proved  that  there  was  an  intention  to  ac- 
quire another  domic.ije/* 
'  Such  an  intention,  i  think,  is  not  to  be  inferred  from  an  attitude 
of  indifference  or  a  disinclination  to  move  increasing  with  increas- 
ing years,  least  of  all  from  the  absence  of  any  manifestation  of  in- 
tention one  way  or  the  other.  It  must  be,  to  quote  Lord  Westbury 
again,  a  "fixed__and  settled  purpose."  "And,"  says  his  Lordship  (L. 
R.  1  H.  L.  Sc.  321),  "unless  you  are  able  to  shew  that  with  perfect  clear^ 
nessandsatis  faction  to  vourselveSj  it  followq  tli3t  n  '^^^'Vi'lp  of  r^TJoip 
continues.'^  So  h^Jlvy  isThe  burden  cast  upon  those  who  seek  to  show 
that  the  domicile  of  origin  has  been  superseded  by  a  domicile  of  choice  ! 
And  rightly,  I  think.  A  change  of  domicile  is  a  serious  matter — 
serious  enough  when  the  competition  is  between  two  domiciles  both 
within  the  ambit  of  one  and  the  same  kingdom  or  country — more 
serious  still  when  one  of  the  two  is  altogether  foreign.  The  change 
may  involve  far-reaching  consequences  in  regard  to  succession  and 
distribution  and  other  things  which  depend  on  domicile. 

To  the  same  effect  was  the  inquiry  which  Lord  Cairns  proposed 
for  the  consideration  of  the  House  in  Bell  v.  Kennedy,  L.  R.  1  H, 
L.  Sc.  311.  It  was  this :  Whether  the  person  whose  domicile  Avas 
in  question  had  "determined"  to  make,  and  had,  in  fact,  made  the 
alleged  domicile  of  choice  "his  home  with  the  intention  of  establish- 
ing himself  and  his  family  there,  and  ending  his  days  in  that  coun- 
try"? In  a  later  case,  Douglas  v.  Douglas  (1871)  L.  R.  12  Eq.  6-15, 
which  came  before  Wickens,  V.  C,  who  was  an  excehent  lawyer, 

LOE.CONF.Li.— 12 


178  GENERAL  PROVISIONS.  (Part  1 

and  owing  to  the  official  position  which  he  long  held  peculiarly  con- 
versant with  cases  of  this  sort,  all  the  authorities  were  reviewed.  The 
competition  there  was  between  a  Scotch  domicile  of  origin  and  an 
alleged  English  domicile  of  choice.  The  learned  Vice  Chancellor 
thought  the  case  "a  peculiar  and  difficult  one."  He  put  the  question 
in  this  way:  "What  has  to  be  here  considered,"  he  said,  "is  wheth- 
er the  testator  *  *  *  ever  actually  declared  a  final  and  deliber- 
ate intention  of  settling  in  England,  or  whether  his  conduct  and  dec- 
larations lead  to  the  belief  that  he  would  have  declared  such  an  in- 
tention if  the  necessity  of  making  the  election  between  the  countries 
had  arisen." 

My  Lords,  if  the  authorities  I  have  cited  are  still  law,  the  ques- 
tion which  your  Lordships  have  to  consider  must,  I  think,  be  this : 
Has  it  been  proved  "with  perfect  clearness  and  satisfaction  to  your- 
selves" that  Mr.  Winans  had  at  the  time  of  his  death  formed  a  "fix- 
ed and  settled  purpose" — "a  determination" — "a  final  and  deliber- 
ate intention" — to  abandon  his  American  domicile  and  settle  in  Eng- 
land? 

Considering  the  amount  of  Mr.  Winans'  fortune,  which  was  be- 
tween two  and  three  millions  in  marketable  securities,  and  the  length 
of  his  residence  in  this  country,  it  is  somewhat  singular  that  the  evi- 
dence ofifered  on  the  question  before  your  Lordships  should  be  so 
meager.  There  is  not  a  single  letter  written  by  or  to  him,  or  a  mem- 
orandum or  note  of  any  sort  made  by  him,  which  bears  directly  on 
the  point.  There  is  nothing  but  long-continued  residence  in  England 
on  the  one  hand  and  some  oral  declarations  and  some  words  in  some 
legal  documents  on  the  other.  There  is  nothing  else  except  such  in- 
ference as  may  be  drawn  from  a  consideration  of  Mr.  Winans'  char- 
acter and  disposition,  the  life  he  led  here,  and  the  objects  which  he 
seems  to  have  had  most  at  heart. 

The  principal  events  in  Mr.  Winans'  life  may  be  stated  briefly.  He 
w'as  born  in  the  United  States  in  18'33.  He  lived  there  till  1850,  re- 
siding in  Baltimore  with  his  father,  a  raihvay  contractor,  and  em- 
ployed in  his  father's  business.  Mr.  Winans'  eldest  son,  Walter^,  who 
was  examined  in  this  case,  says  that  when  he  spoke  of  Baltimore  he 
always  called  it  "home."  In  1850  Mr.  Winans  went  to  Russia.  He 
was  employed  by  the  Russian  government,  as  his  father  had  been, 
in  equipping  railways  there  on  the  American  system.  During  the 
Crimean  War  he  rendered  assistance  to  the  Russian  government  in 
the  construction  and  the  equipment  of  gunboats  to  be  used  against 
the  enemy — England  and  England's  ally.  In  Russia  he  married  a 
Guernsey  lady,  the  daughter  of  a  gentleman  also  employed  by  the  Rus- 
sian government.  He  had  two  sons  by  her.  In  1859  his  health  broke 
down.  There  were  symptoms  of  consumption,  and  he  was  warned  by 
his  doctor  that  another  winter  in  Russia  w^ould  probably  be  fatal.  He 
was  advised  to  winter  in  Brighton  in  England.  Very  reluctantly,  un- 
der medical  orders,  he  left   St.   Petersburg  and   spent  the  winter  in 


Ch.    5)  DOMICILE.  179 

a  hotel  at  Brighton,  returning  to  Russia  when  the  winter  was  over. 
In  1860  he  took  a  furnished  house  in  Brighton,  No.  2  Chichester  Ter- 
race, for  a  term  of  five  years,  determinable  at  the  end  of  any  year. 
He  also  took  the  next  house,  No.  1,  for  a  term  of  twenty-one  years, 
determinable  at  the  fifth,  seventh,  or  fourteenth  year.  He  connect- 
ed the  two  houses  structurally.  He  held  both  these  houses  at  the 
time  of  his  death — the  furnished  house.  No.  2,  as  tenant  from  year 
to  year,  and  No.  1  on  a  tenancy  similar  to  that  on  which  it  was  orig- 
inally taken.  From  1860  down  to  1870  or  1871  he  used  to  spend  the 
winter  at  Brighton  and  about  eight  months  of  the  year  in  Russia. 
In  1870  he  gave  up  his  house  in  St.  Petersburg,  and  took  a  lease  of 
some  shooting  in  Scotland,  apparently  for  the  sake  of  his  sons,  for 
he  shot  very  little  himself.  From  1871  to  1883  he  spent  about  two 
months  in  Russia,  two  or  three  months  in  Kissingen  in  Germany,  and 
the  rest  of  the  year  in  Brighton,  Scotland,  or  London.  In  1883  he 
ceased  to  visit  Russia,  thenceforward  dividing  his  time  between  Kis- 
singen, Brighton,  London,  and  Scotland.  This  mode  of  life  contin- 
ued until  1893.  After  that  date  he  spent  the  whole  of  the  year  in 
England — in  London,  Brighton,  and  the  country.  He  never  bought 
an  estate  in  England  for  himself  or  for  either  of  his  sons.  As  far  as 
he  was  concerned  "he  preferred  living  in  furnished  houses  or  hotels" 
— so  his  son  says. 

Two  events  in  his  life  referred  to  in  the  argument  have,  I  think, 
no  bearing  on  the  question  before  your  Lordships.  In  1877,  to  please 
his  wife,  he  bought  the  crown  lease  of  a  house  in  Palace  Gardens.  But 
he  never  lived  there  after  1892.  It  was  shut  up,  and  he  tried  to  dis- 
pose of  it.  When  he  bought  the  lease  he  seems  to  have  made  partic- 
ular inquiries  in  order  to  ascertain  whether  there  was  anything  in 
the  conditions  of  the  lease  which  might  prevent  his  parting  with  it 
at  any  time  he  pleased.  Pie  never  liked  to  "hamper"  himself.  Any 
prudent  person  would  probably  have  done  the  same.  Then  there  was 
his  unfortunate  experiment  in  the  management  and  improvement  of 
deer  forests  in  Scotland.  He  took  vast  tracts  of  forest,  not,  perhaps, 
altogether  for  sporting  purposes,  as  sport  is  understood  in  this  coun- 
try. After  a  time  he  inclosed  the  ground  with  miles  of  fencing  to 
prevent  the  deer  straying.  He  had  a  notion  that  the  value  of  the  for- 
est for  letting  purposes  would  be  much  increased  by  stopping  shoot- 
ing for  some  years,  and  allowing  the  stags  a  longer  term  of  undis- 
turbed life.  However,  he  got  into  trouble  with  the  crofters  and  with 
his  lessors,  and  he  became  rather  unpopular  both  with  those  by  whom 
deerstalking  is  highly  esteemed  and  those  to  whom  deer  forests  are 
an  abomination.  He  thought,  too,  he  had  rather  wasted  money  on 
the  shootings ;  so  he  gave  up  his  experiment,  and  he  seems  to  have 
got  rid  of  all  the  Scotch  shootings  before  his  death. 

My  Lords,  in  the  dearth  of  evidence  bv  written  or  ora|__decl^ra- 
tions  as  to  Mr.  Winans'  intentions,  it  seems  to  me  to  be  important  to       '   X^/^^""''''^*' 


consider  what  manner  of  man  Mr.  Winans  was,  what  were  the  main 


-^4 


180  GENERAL  PROVISIONS.  (Part  1 

objects  oj  his  existence,3nrl  what  sort  of  a  life  he  lived  in  this  coun- 
try. 1  think^there  is  a  good  deal  of  force  in  some  observations  tHat 
were  made  both  by  Lord  Cranworth  and  Lord  Wensleydale  in  the 
case  of  Whicker  v.  Hume  (1858)  7  H.  L.  C.  124,  to  the  effect  that 
in  these  days,  when  the  tendency  of  the  educated  and  leisured  classes 
is  to  become  cosmopolitan — if  I  may  use  the  word — you  must  look 
very  narrowly  into  the  nature  of  a  residence  suggested  as  a  domicile 
of  choice  before  you  deprive  a  man  of  his  native  domicile. 

Mr.  Winans  was  a  person  of  considerable  ability  and  of  singular 
tenacity  of  purpose,  self-centered,  and  strangely  uncommunicative. 
He  was  not  interested  in  many  things,  but  whatever  he  did  he  did, 
as  his  son  says,  thoroughly.  He  became  completely  absorbed  in  a 
scheme  when  he  took  it  up.  At  the  same  time  he  lived  a  very  re- 
tired— almost  a  secluded — life.  He  took  no  part  in  general  or  mu- 
nicipal politics.  He  rarely  went  into  society.  He  had  no  intimate 
friends,  if,  indeed,  he  had  any  friends  at  all,  in  this  country.  There 
is  no  evidence  that  he  was  interested  in  any  charity  or  charitable  or 
philanthropic  institution  in  England.  Although  he  was  on  affection- 
ate terms  with  his  two  sons,  he  never  let  them  into  his  secrets.  "He 
always  worked  his  business  himself,"  his  son  says,  "and  never  brought 
us  into  the  business  affairs  in  any  way."  And  although  at  odd  times 
he  mentioned  his  property  in  America,  he  never  allowed  even  his  eldest 
son  "to  understand  much  about  it." 

Mr.  Winans  had  three  objects  in  life.  His  first  object  was  his 
health.  He  nursed  and  tended  it  with  wonderful  devotion.  He  took 
his  temperature  several  times  a  day.  He  had  regular  times  for  tak- 
ing his  temperature,  and  regular  times  for  taking  his  various  waters 
and  medicines. 

Besides  the  care  of  his  health,  there  were  two  other  objects  which 
engrossed  his  thoughts.  The  first  was  the  construction  of  spindle- 
shaped  vessels  commonly  called  cigar  ships.  This  form  of  vessel 
was,  as  Mr.  Winans  asserted,  an  invention  of  the  Winans  family. 
Many  patents  were  taken  out  for  it  both  in  England  and  in  America. 
It  was  claimed  that  vessels  of  this  type  would  be  able  to  cross  the 
Atlantic  without  pitching  or  rolling.  In  an  application  to  Congress 
in  the  year  1892  Mr.  Winans  represented  himself  as  attached  heart 
and  soul  to  his  country,  and  asked  for  protection  for  a  long  term  of 
years  in  consideration  of  the  great  expenditure  which  he  and  his  fam- 
ily had  incurred  in  perfecting  the  invention,  and  the  vast  benefits  that 
would  result  from  it  to  the  people  of  the  United  States.  Mr.  Winans 
declared  his  confident  expectation  that  a  fleet  of  spindle-shaped  ves- 
sels subsidized  by  Congress  would  restore  to  America  the  carrying 
trade  which  had  fallen  into  the  hands  of  England  and  other  foreign 
nations,  secure  to  America  the  command  of  the  sea,  and  make  it  im- 
possible for  Great  Britain  to  maintain  war  against  the  United  States. 
Such  a  fleet  as  he  described  in  his  application  could,  he  said,  "meet 
war  vessels  in  open  sea  near  the  European  side  and  destrcy  one  ves- 


Ch.    5)  DOMICILE.  181 

sel  after  another,  so  that  none  of  them  would  be  able  to  reach  our 
shores."  In  the  development  of  his  invention  Mr.  Winans  stated 
that  he  had  incurred  an  expense  nearly  equal  to  four  millions  of  dol- 
lars. 

Mr.  Winans'  confidence  in  this  project  remained  unshaken  to  the 
end  of  his  life,  and  he  kept  an  office  in  Beaufort  Gardens  where  a 
staff  of  engineers  and  draftsmen  was  engaged  in  working  out  the 
problem. 

There  was  another  scheme  which  Mr.  Winans  hoped  to  develop 
and  work  in  connection  with  his  fleet  of  spindle-shaped  vessels.  In 
1859  a  property  in  Baltimore,  about  200  acres  in  extent,  called  Fer- 
ry Bar,  was  purchased  on  behalf  of  the  Winans  family  originally 
for  the  purpose  of  being  used,  as  Mr.  Winans  states  in  a  letter  of 
January  31,  1882,  "for  the  service  of  the  sea-going  steamers  of  the 
spindle-shaped  form."  The  scheme  was  that  the  water  frontage  should 
be  used  for  wharves  and  docks,  while  a  portion  of  the  property  should 
be  laid  out  for  the  building  of  first-class  houses  as  a  sort  of  Belgrav- 
ia.  There  Mr.  Winans  intended  to  build  a  big  house  for  himself  and 
control  the  undertaking,  which  would  make  the  property,  he  thought, 
when  developed,  worth  one  million  sterling.  Nothing  practical  came 
of  this  scheme,  because  the  members  of  the  family  could  not  agree 
among  themselves  how  the  property  was  to  be  developed.  So  Mr. 
Winans  determined  to  wait  until  he  could  get  the  whole  into  his  own 
hands.  Then  he  would  develop  the  property  himself  in  his  own  way 
and  according  to  his  own  ideas.  He  did  not  succeed  in  acquiring 
the  entire  interest  until  just  before  his  death.  At  the  date  of  his 
death,  his  son  says,  "he  was  working  night  and  day  on  it."  I  find 
that  in  the  conveyances  of  the  last  portion  of  the  Ferry  Bar  property, 
which  were  prepared  just  before  his  death,  and  which  are  dated  June 
16,  1897,  Mr,  Winans  is  described  as  "of  city  of  Baltimore,  but  now 
sojourning  in  the  city  of  London,  England." 

Of  course,  to  us  these  schemes  of  Mr.  Winans  appear  wild,  vision- 
ary, and  chimerical.  But  I  have  no  doubt  that  to  a  man  like  Mr. 
Winans,  wholly  wrapt  up  in  himself,  they  were  very  real.  They  were 
the  dream  of  his  life.  For  forty  years  he  kept  them  steadily  in  view. 
And  one  was  anti-English  and  the  other  wholly  American. 

It  was  in  connection  with  these  schemes  that  the  latest  and  clear- 
est declaration  of  intention  was  made  by  Mr.  Winans.  Mr.  H.  ]\Ion- 
tague  Williams,  who  was  his  solicitor  at  Brighton,  says  that  about 
two  years  before  his  death — a  time  which  in  cross-examination  he 
fixed  in  the  winter  of  1895  or  beginning  of  1896 — Mr.  Winans  en- 
tered into  rather  a  lengthy  disquisition  about  the  Ferry  Bar  prop- 
erty. Mr.  Winans  told  him  that  he  was  making  arrangements  for 
buying  the  remaining  shares  in  it,  that  a  good  deal  of  it  belonged 
to  him,  and  that  he  intended  when  he  had  done  that  to  go  out  to  Amer- 
ica and  live  in  Baltimore  and  develop  the  estate  there  himself.  Mr. 
Williams  says  he  remembers  Mr.  Winans  particularly  saying,  "If  I 


182  GENERAL  PROVISIONS.  (Part  1 

do  that  it  will  be  worth  a  million  pounds;"  and  he  adds,  "The  de- 
cided way  in  which  he  said  'I  shall  go  out  to  Baltimore'  (or  words  to 
that  effect)  struck  me  at  the  time." 

The  only  other  circumstance  to  be  mentioned  is  that  in  his  will  dat- 
ed February  4,  1897,  Mr.  Winans  describes  himself  as  a  "citizen  of 
the  United  States  of  America." 

It  was  argued  on  behalf  of  the  Crown  that,  although  Mr.  Winans 
may  have  been  prevented  by  the  state  of  his  health  from  returning  to 
America  when  he  left  Russia,  and  although  he  could  not  have  safe- 
ly attempted  the  voyage  in  the  latter  years  of  his  life,  yet  there  was 
a  time  in  which  he  might  have  ventured  to  cross  the  Atlantic  in  an 
ordinary  liner.  The  obvious  answer  is  that  at  that  time,  when  divid- 
ed counsels -and  family  disagreements  prevented  the  development  of 
the  Ferry  Bar  property,  he  had  no  object  in  going  to  Baltimore. 

Then  it  was  said  that  the  length  of  time  during  which  Mr.  Winans 
resided  in  this  country  leads  to  the  inference  that  he  must  have  be- 
come content  to  make  this  country  his  home.  Length  of  time  is  of 
course  a  very  important  element  in  questions  of  domicile.  An  un- 
conscious change  may  come  over  a  man's  mind.  If  the  man  goes 
about  and  mixes  in  society  that  is  not  an  improbable  result.  But 
in  the  case  of  a  person  like  Mr.  Winans,  who  kept  himself  to  himself 
and  had  little  or  no  intercourse  with  his  fellow  men,  it  seems  to  me 
that  at  the  end  of  any  space  of  time,  however  long,  his  mind  would 
probably  be  in  the  state  it  was  at  the  beginning.  When  he  came  to 
this  country  he  was  a  sojourner  and  a  stranger,  and  he  was,  I  think, 
a  sojourner  and  a  stranger  in  it  when  he  died. 

On  the  whole  I  am  unable  to  come  to  the  conclusion  that  ]\Ir.  Wi- 
nans ever  formed  a  fixed  and  settled  purpose  of  abandoning  his  iVmer- 
ican  domicile  and  settling  finally  in  England.  I  think  up  to  the  very 
last  he  had  an  expectation  or  hope  of  returning  to  America  and  see- 
ing his  grand  schemes  inaugurated.  To  take  the  test  proposed  by 
Wickens,  V.  C,  "if  the  question  had  arisen  in  a  form  requiring  a  de- 
liberate or  solemn  determination,"  I  have  no  doubt  ]\Ir.  Winans,  who 
was,  as  his  son  says,  "entirely  American  in  all  his  ideas  and  sym- 
pathies," would  have  answered  it  in  favour  of  America. 

I  am  therefore  of  opinion  that  the  Crown  has  not  discharged  the 
onus  cast  upon  it,  and  I  think  that  the  order  appealed  from  ought 
to  be  reversed. 

Lord  LiNDLEY.  *  *  *  y[y  Lords,  I  take  it  to  be  clearly  settled 
—by  the  Lauderdale  Peerage  Case  (1885)  10  App.  Cas.  693 ;  Udny  v. 
Udny,  L.  R.  1  H.  L.  Sc.  411 ;  Bell  v.  Kennedy,  L.  R.  1  H.  L.  Sc.  307— 
that  the  burden  of  proof  in  all  inquiries  of  this  nature  lies  upon  those 
who  assert  that  a  domicile  of  origin  has  been  lost,  and  that  some  other 
domicile  has  been  acquired.  Further,  I  take  it  to  be  clearly  settled 
that  no  person  who  is  sui  juris  can  change  his  domicile  without  a 
physical  change  of  place7couplc(n^ntH~"an  Jnj£ritinn  ta  adoj^tjjie  place 
to  which  he_gpes  as  his  homeor  fixed  abode  or  permanent  residence, 


Ch.    5)  DOMICILE. 

whichever  expression  may  be  preferred.  If  a  change  of  residence  is 
proved,  the  intention  necessary  to  establish  a  change  of  domicile  is  an 
intention  to  adopt  the  second  residence  as  home,  or,  in  other  words  an 
intention  to  remain  without  any  intention  of  further  change  except 
possibly  for  some  temporary  purpose.  See  Story's  Conflict  of  Laws, 
§  43,  and  In  re  Craignish  [1892]  3  Ch.,  at  page  192,  Attorney 
General  v.  Pottinger  (1861)  6  H.  &  N.  733,  and  Douglas  v.  Douglas, 
L.  R.  12  Eq.  643,  644. 

My  Lords,  the  change  of  residence  here  is  plain  enough,  and  need 
not  be  enlarged  upon.  The  difficulty  is  about  the  intention  of  Mr. 
Winans  with  reference  to  the  change.  The  exact  time  when  he  made 
up  his  mind  to  settle  here  cannot  be  ascertained.  There  is  no  docu- 
ment or  conversation  which  enables  any  one  to  fix  the  date.  But  it 
by  no  means  follows  that  when  he  died  it  cannot  be  inferred  that  he 
must  have  abandoned  all  thoughts  of  going  back  to  America  and  set- 
tling there,  and  have  gradually  become  content  to  make  his  home  in 
this  country  without  contemplating  any  change.  If  this  can  be  estab- 
lished, a  change  of  domicile  will  be  the  legal  result.  Haldane  v. 
Eckford  (1869)  L.  R.  8  Eq.  631;  Douglas  v.  Douglas,  L.  R.  12  Eq. 
617.  An  intention  to  change  nationality,  to  cease  to  be  an  American 
and  to  become  an  Englishman^  was  said  to  be  necessary  in  J\Ioorehouse 
V.  Lord  (1863)  10  H.  L.  C.  272;  but  that  view  was  decided  to  be  in- 
correct in  L'dny  v,  Udny,  L.  R.  1  H.  L.  Sc.  441. 

Intention  may  be  inferred  from  conduct,  and  there  are  cases  in 
which  domicile  has  been  changed,  notwithstanding  a  clear  statement 
that_jiQ_j:hange  of  domicile  was  intended.  See  Re  Steer  (1858)  3 
H.  &  N.  599,  and  per  Wickens,  V.  C,  in  12  Eq.  644.  An  expressed 
intention  to  return  for  a  temporary  purpose,  or  in  some  possible  event 
which  never  happens,  will  not  prevail  over  a  clear  inference  from 
other  circumstances  of  an  intention  to  remain.  See  Attorney  General 
v.  Pottinger,  6  H.  &  N.  747,  per  Bramwell,  B.,  and  Doucet  v.  Geog- 
hegan  (1878)  9  Ch.  D.  441. 

My  Lords,  I  do  not  propose  to  refer  at  length  to  the  details  of  Mr. 
Winans'  life.  They  were  elaborately  brought  to  your  Lordships' 
attention  by  counsel,  and  have  been  most  graphically  described  by  my 
noble  and  learned  friend  who  has  just  addressed  the  House.  There 
is  no  real  controversy  about  the  facts.  The  question  is  what  inference 
ought  to  be  drawn  from  them.  Here  I  have  the  misfortune  to  differ 
from  my  noble  and  learned  friends  who  have  just  addressed  the 
House.  I  have  arrived  at  the  same  conclusion  as  that  arrived  at  by 
Phillimore,  J.,  and  the  Court  of  Appeal.  I  cannot  myself  draw  any 
other  inference  than  that  which  they  have  drawn :  Where  was  Mr. 
Winans'  home — his  settled  permanent  home?  He  had  one  and  onlv 
one,  and  that  one  was  in  this  country;  and  long  before  he  died  I  am 
satisfied  that  he  had  given  up  all  serious  idea  of  returning  to  his 
native  country.  He  was  an  American  citizen  permanently  settled  in 
this  country.     But  although  so  settled  he  was  proud  of  his  nationality 


184  GENERAL  PROVISIONS.  (Part  1 

and  had  no  intention  to  change  it.  He  may  at  one  time  have  loolced 
back  on  Baltimore  as  his  possible  ultimate  home,  but  he  had  ceased  to 
do  so  long-  before  he  died.  In  1880  he  proposed  to  build  a  house  for 
himself  in  Baltimore;  but  this  came  to  nothing,  and  none  of  his 
later  schemes  for  developing  his  property  there  were  carried  out  in 
his  lifetime,  nor  did  they  involve  any  change  of  residence  on  his  part. 
A  dim  hope  and  expectation  of  being  at  some  time  able  to  return  to 
America  when  he  had  succeeded  in  constructing  a  ship  to  his 
liking — which  he  never  did — is  spoken  to  by  his  son,  but  when  last 
does  not  appear.  I  can  find  nothing  to  displace  the  only  inference 
which  I  can  draw  from  Mr.  Winans'  conduct  for  the  last  twenty  or 
twenty-five  years  of  his  liie. 

In  my  opinion  the  appeal  should  be  dismissed  with  costs. 

Orders  of  the  Court  of  Appeal  and  Queen's  Bench  Division  re- 
versed with  costs  here  and  below ;  the  respondent  to  repay  to  the  ap- 
pellants the  amount  of  the  legacy  duty  paid  by  them.  Cause  remitted 
to  the  King's  Bench  Division.^ 


WHITE  V.  TENNANT. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1888.    31  W.  Va.  790,  8  S.  E.  596. 

13  Am.  St.  Rep.  896.) 

Snyder,  J.  This  is  a  suit  brought  December,  1886,  in  the  circuit 
court  of  Monongalia  county  by  William  L.  White  and  others  against 
Emrod  Tennant,  administrator  of  Michael  White,  deceased,  and  Lu- 
cinda  White,  the  widow  of  said  Michael  White,  to  set  aside  the  settle- 
ment and  distribution  made  by  the  administrator  of  the  personal  es- 
tate of  said  decedent,  and  to  have  the  same  settled  and  distributed  ac- 
cording to  the  laws  of  the  state  of  Pennsylvania,  which  state  it  is 
claimed  was  the  domicile  of  said  decedent  at  the  time  of  his  death. 
The  plaintiffs  are  the  brothers  and  sisters  of  the  decedent,  who  died  in 
this  state  intestate.  On  October  28,  1887,  the  court  entered  a  decree 
dismissing  the  plaintiffs'  bill,  and  they  have  appealed. 

The  sole  question  presented  for  our  determination  is  whether  the 
said  Michael  White,  at  the  time  of  his  death,  in  May,  1885,  had  his 
legal  domicile  in  this  state  or  in  the  state  of  Pennsylvania.  It  is 
admitted  to  be  the  settled  law  that  the  law  of  the  state  in  which  the 
decedent  had  his  domicile  at  the  time  of  his  death  will  control  the 
succession  and  distribution  of  his  personal  estate.  Before  referring 
to  the  facts  proved  in  this  cause,  we  shall  endeavor  to  determine  what 
in  law  is  meant  by  "domicile."  Dr.  Wharton  says :  "  'Domicile'  is 
a  residence  acquired  as  a  final  abode.     To  constitute  it  there  must  be 

2  Tbe  Lord  Chancellor  (Karl  of  Ilalsbury)  was  unable  to  come  to  a  satis- 
factory conclusion  either  way,  and  decided  for  reversal  on  the  ground  that  the 
burden  of  proof  was  upon  the  Crown. 


Ch.    5)  DOMICILE.  185 

(1)  residence,  actual  or  inchoate;  (2)  the  nonexistence  of  any  inten- 
tion to  make  a  doinicile  elsewhere."  Whart.  Confl.  Law,  §  21. 
"  'Domicile'  is  that  place  or  country,  either  (1)  in  which  a  person  in 
fact  resides  with  an  intention  of  residence — animus  manendi;  or  (2) 
in  which,  having  so  resided,  he  continues  actually  to  reside,  though  no 
longer  retaining  the  intention  of  residence — animus  manendi;  or  (3) 
with  regard  to  which,  having  so  resided  there,  he  retains  the  intention 
of  residence — animus  manendi — though  he  in  fact  no  longer  resides 
there."  Dicey,  Dom.  44.  Two  things  must  concur  to  establish  donii- 
cile — the  fact  of  residence,  anri  thf  inf-pntion  of  remainino-.  These  two 
must  exist,  or  must  have  existed,  in  combination.  There  must  have 
been  an  actual  residence.  The  character  of  the  residence  is  of  no 
importance ;  and,  if  domicile  has  once  existed^  mere  temporary  absence 
will  not  destroy  Tt,  however  long  cord'^riupA  Munro  v.  Munro,  7 
Clark  &  F.  842.  The  original  domicile  continues  until  it  is  fairly 
changed  for  another.  It  is  a  legal  maxim  that  every  person  must 
have  a  domicile  somewhere ;    and  he  can  have  but  one  at  a  time  for  ^ 

the  same  purpose.  From  this  it  follow^s  that  one  cannot  be  lost  or 
extinguished  until  another  is  acquired.  Bair^  v.  Bj^e,  3  Wall. 
Jr.  (U.  JS.)  1,  Fed.  Cas.  No.  757.  When  one  domicile  is  definitely 
abandoned,  and  a  new  one  selected  and  entered  upon,  length  of  time 


/ 


is  not   important;  one   day  will  be   sufficient,   provided  the   animus     (^         %a>^'' 
exists.     Even  \vhen_  the  point  of  destination  is  not  reached,  domicile'^        Qsl  \[^ 
may  shift Jnjtinere,  if  the  abandonment  of  the  old  domicile,  and  the-      {^(jt*   \/ 
setting  oirTfor  tHe jieu^  are" plainly  showii^__i>IuDrQ£^v.  Douglases        |    -J^^^'jIa. 
Madd.  405.     Thus  _a^  constructive  residence  seems  to  be  sufficient_J:o  r^J^^\i 

give  domicile,  though  an  actual  residence  mav  not  have  hegun.^    Whart.       ^     .  ^JCI-*  ^^^^ 
Confl.  Law,  §  58.     A  change  of  domicile  does  not  depend  so  mucHV^^^ 


upon  the  intention  to  remain  in  the  new  place   for  a  definite  or  an 

indefinite  period,  as  upon  its  being  without  an  intention  to  return,     .-tn 

intention  to  return,  however,  at  a  remote  or  indefinite  period,  to  the 

former  place  oT^ actual  residence,  \vill  not  control,  if  the  other  facts     "T^wlQf  '^^ 

which  constitute  domicile  all  give  tHe  new  residence  the  character  of    'Jk  \^^^>ypv^ 


a  permanent  home  or  place  of  abode.  The  intention  and  actual  fact 
of  residence  must  concur,  where  such  residence  is  not  in  its  nature 
temporary.  Hallet  v.  Bassett,  100  Mass.  170,  171 ;  Long  v.  Ryan,  30 
Grat.  (Va.)  718.  In  Bradley  v.  Lowry,  1  Speer,  Eq.  (S.  C.)  1,  39  Am. 
Dec.  142,  it  is  held  that  "change  of  domicile  is  consummated  when  one 
leaves  the  state  where  he  has  hitherto  resided,  avowing  his  intention 
not  to  return,  and  enters  another  state  intending  to  permanently  settle 
there."  A  domicile  once  acquired  remains  until  a  new  one  is  acquired 
elsewhere,  facto  et  animo.  Story,  Confl.  Law,  §  47 ;  Hart  v.  Lindsey, 
17  N.  H.  235,  43  Am.  Dec.  597.  Where  a  person  removes  from  one 
state  to  another  and  establishes  a  fixed  residence  in  the  latter,  it  will 
become  his  domicile,  although  there  may  be  a  floating  intention  to 
return  to  his  former  place  of  abode  at  some  future  period.  Ring- 
gold V.  Barley,  5  Md.  18G,  59  Am.  Dec.  107.     "If  a  man  intending  to 


186  GENERAL  PROVISIONS.  (Part  1 

remove  with  his  family  visits  the  place  of  removal  beforehand,  to  make 
arrangements,  or  even  sleeps  there  occasionally  for  convenience,  and 
then  transfers  his  family,  the  change  of  domicile  takes  effect  from 
the  time  of  removing  with  the  family ;  but  if  he  has  definitely  changed 
his  residence,  and  taken  up  his  abode  permanently  in  a  new  place,  the 
fact  that  his  family  remains  behind  until  he  can  remove  them  conven- 
iently, and  that  he  visits  them  occasionally,  will  not  prevent  the  new 
place  being  his  domicile."  Guier  v.  O'Daniel,  1  Am.  Lead.  Cas.  (753) 
902;  Cambridge  v.  Charlestown,  13  Mass.  501. 

The  material  facts  in  the  case  at  bar  are  as  follows :  Joseph  S. 
White,  the  father  of  the  plaintiffs  and  Michael  White,  died  intestate 
in  Monongalia  county,  seised  of  a  tract  of  about  240  acres  of  land, 
of  which  about  400  acres  lay  in  Greene  county,  Pa. ;  the  whole  con- 
stituting but  one  tract  or  farm.  The  mansion  house  in  which  the 
father  resided  was  located  on  the  West  Virginia  side  of  the  farm,  and 
there  was  also  a  dwelling  house  generally  occupied  by  tenants  on  the 
Pennsylvania  part  of  the  farm.  After  the  death  of  the  father,  his 
widow  and  the  plaintiffs  remained  together  and  occupied  the  home 
farm,  residing  in  the  mansion  house  in  West  Virginia.  Michael  White, 
several  years  before  his  death,  married  the  defendant  L,ucinda  White, 
a  daughter  of  the  defendant  Emrod  Tennant,  and  about  that  time 
purchased  a  farm  on  Day's  Run,  in  Monongalia  county,  some  15  miles 
from  the  home  place,  to  which  he  moved,  and  at  which  he  and  his 
wife  resided.  It  is  conceded  that  Michael  was  born  and  had  his 
domicile  in  West  Virginia  all  his  life,  until  about  April  1,  1885.  In 
the  winter  of  1884-85,  Michael  sold  his  Day's  Run  farm,  and  then 
rented  or  made  an  arrangement  with  his  mother  and  brothers  and 
sisters,  the  plaintiffs,  to  occupy  the  40  acres  of  the  home  farm,  in 
which  he  still  had  an  undivided  interest,  and  to  live  in  the  house  on 
said  40  acres  in  Greene  county.  Pa.  He  was  to  give  to  the  purchaser 
the  possession  of  his  Day's  Run  farm  on  April  1,  1885,  and  to, have 
possession  of  the  Pennsylvania  house  and  40  acres  at  the  same  time. 
In  March,  1885,  he  moved  part  of  his  household  goods  into  the  Penn- 
sylvania house,  and  put  them  into  one  of  the  rooms  by  permission  of 
the  tenant  who  then  occupied  it,  and  who  did  not  vacate  it  until  be- 
tween the  middle  and  last  of  March,  1885.  About  the  same  time  he 
moved  an  organ  and  some  grain  to  the  old  homestead,  until  he  could 
get  possession  of  the  Pennsylvania  house.  On  the  morning  of  April 
2,  1885,  he  finally  left  the  Day's  Run  house  with  the  remainder  of  his 
goods  and  his  wife,  he  having  no  children,  with  the  declared  intent 
and  purpose  of  making  the  Pennsylvania  house  his  home  that  evening. 
He,  with  his  team,  wife,  and  goods,  and  live  stock,  passed  into  the 
state  of  Pennsylvania  several  miles  before  he  reached  said  house,  and 
continued  in  said  state  thence  to  said  Pennsylvania  house,  wlitre  they 
arrived  that  evening  about  sundown,  and  then  and  there  unloaded  their 
goods,  and  put  them  in  the  house,  setting  up  one  bed,  and  turning  the 
fowls  and  other  live  stock  loose  at  the  house. 


Ch.    5)  DOMICILE.  187 


'H^ 


The  said  house  had  been  vacated  for  several  days.    It  was  a  damp,     1 « /.jt-^'"'*^*    Jj. 
cool  day,  and  the  house  was  found  to  be  damp  and  uncomfortable.    The  U^-^  ^  o'^^^'o^   . 
wife  was  complaining  of  feeling  unwell,  and  in  consequence  of  that  fact  ^^XJ^      .    C^'^  ^ 
and  the  uncomfortable  condition  of  the  house,  on  the  invitation  of  her  f^^^^^vjr^  ,  . 

brother-in-law  and  others  of  the  family  who  then  resided  at  the  man-  j  Xi  -V  ^ 
sion  house,  but  a  short  distance  therefrom,  the  said  Michael  and  his  /j^M.  •  ^ 
wife  went  to  the  mansion  house  in  West  Virginia  to  stay  all  night  and  Ja-vA*''*'^^ * 
return  in  the  morning.  Before  leaving  the  Pennsylvania  house  the  wife 
had  gotten  out  of  the  buggy  at  the  house,  and  the  said  Michael,  after 
putting  into  it  his  household  goods,  locked  the  door,  and  took  the  key 
with  him.  On  the  following  morning,  the  wife  still  feeling  unwell,  and 
the  brother,  who  was  to  return  the  team  which  they  had  used  in  moving 
their  goods,  having  taken  sick,  the  wife,  after  going  to  the  Pennsyl- 
vania house  to  milk,  returned  to  the  mansion  house,  and  Michael  took 
the  team  back  to  Day's  Run.  On  the  return  of  ]\Iichael  from  this 
trip  he  found  his  wife  so  sick  with  typhoid  fever  that  it  was  impossible 
to  move  her,  in  consequence  of  which  both  he  and  she  remained  at 
the  mansion  house — she  because  she  was  unable  to  get  away,  and  he 
to  wait  on  her — but  he  went  daily  over  to  the  Pennsylvania  house  to 
look  after  it,  and  to  feed  his  stock  there,  calling  it  his  "home."  In  10 
or  15  days,  and  before  the  wife  had  sufficiently  recovered  to  leave  her 
bed,  Michael  was  attacked  with  typhoid   fever,  and  about  10  days 

thereafter  died  intestate  in  the  same  house.     The  wife  recovered,  and  ,/   , 

the  defendant  Emrod  Tennant,  her  father,  administered  on  the  estate  \aj-9>^^ 

of  ]\iichael,  taking  out  letters  of  administration  in  MonongalJa-CQiuity.    ^  jTIju 

^^^_3^"n      ^^""^  ndpiinistrator  settled  his  accounts  before  a  commission e r    ^L'flVW'*''^^ 
of  said  county,  and  distributed  the  estate  according  to  the  laws  of 
West  Virginia ;  that  is.  by  paying  over  to  the  wirlnw  tlip  Aylmle  person  a  1 
estate  remaining  after  the  payment  of  the  debts  of  the  decedent.     It  ^ 

is"^dmitted  that  ifthe  distribution  had  been  according  to  thelaws  of  \     ^--^•4/  "  ' 

the  state  of  Pennsylvania  the"wafe  would  have  been  entitledTothe  .one    ^  '^  ,» 

half  only  of  sai?  estate,  and  the  pianitifts  would  have  been  entitled  Jo  X^^X"^^-*-'*'''^  ^ 
the'otherJialf.  As  tne  law  ot  tne^~stact^  an  which  the  decedent  had  his 
domicile  at  the  time  of  his  death  must  govern  the  distribution  of  his 
estate,  the  important  question  is,  where,  according  to  the  foregoing 
facts,  was  the  domicile  of  Michael  at  the  time  of  his  death?  It  is 
unquestionable  that  prior  to  the  2d  day  of  April,  1885,  his  domicile 
was  and  had  always  been  in  the  state  of  West  Virginia.  Did  he  on 
that  day,  or  at  any  subsequent  day,  change  his  domicile  to  the  state  ■ 
of  Pennsylvania?  According  to  the  authorities  hereinbefore  cited, 
if  it  is  shown  that  a  person  has  entirely  abandoned  his  forrner  domicile 
in  one^state  with  the  intention^ofjTiakin^Jiis  home  at  a  fixed  place  in 
another  state,  with ~no~inteiition  of  returning  tonh^is~'fo"fme'r  domicile, 
and  then  establishes  a  re^KTeiice.  in  the  new  pbre  for  nny^jwindnf 
time,  howeveFbrief,^that  will  be  in  law  a  change  of  domicile,  and^  tHe 
latter  will  reniain  hrs~"donTtcile3ptrrcTianged  in  like  mann^E  "TTie 
facts  in  this  case  conclusively  prove  that  IMicliacl  Wliite.  the  decedent, 


o^ 


188  GENERAL  PROVISIONS.  (Part  1 

abandoned  his  residence  in  West  Virginia  with  the  intention  and  pur- 
pose not  only  of  not  returning  to  it,  but  for  the  expressed  purpose  of 
making  a  fixed  place  in  the  state  of  Pennsylvania  his  home  for  an 
indefinite  time.  This  fact  is  shown  by  all  the  circumstances,  as  well 
as  by  his  declarations  and  acts.  He  had  sold  his  residence  in  West 
Virginia,  and  surrendered  its  possession  to  the  purchaser,  and  thereby 
made  it  impossible  for  him  to  return  to  it  and  make  it  his  home. 
He  rented  a  dwelling  in  Pennsylvania,  for  which  he  had  no  use  except 
to  live  in,  and  make  it  his  home.  In  addition  to  all  this,  he  had  moved 
a  part  of  his  household  goods  into  this  house,  and  then  on  the  2d  of 
April,  1885,  he,  with  his  family  and  the  remainder  of  his  goods  and 
stock,  finally  left  his  former  home,  and  the  state  of  West  Virginia, 
and  moved  into  the  state  of  Pennsylvania,  to  his  house  in  that  state, 
and  there  put  his  goods  in  the  house,  and  turned  his  stock  loose  on 
the  premises.  At  the  time  he  left  his  former  home  on  that  morning, 
and  while  he  was  on  the  way  to  his  new  home,  his  declared  purpose 
and  intention  were  to  make  that  his  home  from  that  very  day,  and  to 
occupy  it  that  night.  He  arrived  in  Pennsylvania  and  at  his  new 
home  with  that  intention ;  and  it  was  only  after  he  arrived  there,  and 
for  reasons  not  before  known,  and  which  had  no  effect  to  change  his 
purpose  of  making  that  his  future  home,  that  he  failed  to  remain  there 
from  that  time.  There  was  no  change  in  his  purpose  except  that  after 
he  arrived  at  his  new  home,  and  unloaded  and  left  his  property  there, 
he  concluded,  on  account  of  the  condition  of  the  house  and  the  illness 
of  his  wife,  that  it  would  be  better  to  go  with  his  wife  to  remain  one 
night  with  his  relatives,  and  return  the  next  morning.  When  he  left 
his  former  home,  without  any  intention  of  returning,  and  in  pursuance 
of  that  intention  did  in  fact  move  with  his  family  and  effects  to  his 
new  home  with  the  intention  of  making  it  his  residence  for  an  indefi- 
nite time,  it  is  my  opinion  that  when  he  and  his  wife  arrived  at  his 
new  home  it  became  eo  instanti  his  domicile,  and  that  his  leaving  there, 
under  the  circumstances  with  the  intention  of  returning  the  next  day 
did  not  change  the  fact.  The  conrnrrenre  nf  his  intention  to  make  tlie 
Pennsylvania  house  his  permanent  residence  with  the  fact  that  he 
riacl_actuallv^abandoned  his  former  residence,  and  moved  to  and  put  his 
o-r,r.f]c^  j|-i  tVip  n^^y  Qn^^  mad'^  th_g_Jntt^^  ^'^^  domicile!  Accordmg  to  the 
authorities  hereinbefore  referred  tolTe  must  ot  necessity  have  had  a 
domicile  somewhere.  If  he  did  not  have  one  in  Pennsylvania,  where 
did  he  have  one  ?  The  fact  that  he  left  the  Pennsylvania  house  after  he 
had  moved  to  it  with  his  family  and  goods,  to  spend  the  night,  did  not 
revive  his  domicile  at  his  former  residence  on  Day's  Run,  because  he 
had  sold  that,  and  left  it  without  any  purpose  of  returning  there.  By 
going  from  his  new  home  to  the  house  of  his  relatives  to  spend  the 
night  he  certainly  did  not  make  the  house  thus  visited  his  domicile ; 
therefore,  unless  the  Pennsylvania  house  was,  on  the  evening  of  April 
2,  1885,  his  domicile,  he  was  in  the  anomalous  position  of  being  without 
a  domicile  anywhere,  which,  as  we  have  seen,  is  a  legal  impossibility ; 


Ch.    5)  DOMICILE.  189  -J 

and  that  house  having  become  his  domicile,  there  is  nothing  m  this      ^       ^j/ 
case  to  show  that  he  ever  did  in  fact  change  or  intend  to  change  it,  5^  ^Jr^      u)^ 
or  to  establish  a  domicile  elsewhere.  A^  l       xjH^ 

It  follows,  therefore,  that  that  house  remained  his  domicile  up  to  and  ^  "^  r^tA,' 
at  the  time  of  his  death;  and,  that  house  being  in  the  state  of  Penn- 
sylvania, the  laws  of  that  state  must  control  the  distribution  of  his 
personal  estate,  notwithstanding  the  fact  that  he  died  in  the  state  of 
West  Virginia.  For  these  reasons  the  decree  of  the  circuit  court  must 
be  reversed,  and  the  cause  must  be  remanded  to  that  court  to  be  there 
further  proceeded  in  according  to  the  principles  announced  in  this 
opinion,  and  the  rules  of  courts  of  equity.* 


Appeal  of  HINDMAN. 

(Supreme  Court  of  Pennsylvania,  1877,  1878.     85  Pa.  4G6.) 

Mercur,  J.  All  the  assignments  of  error  relate  to  the  question  of 
the  place  of  George  Hindman's  domicile,  at  the  time  of  his  death. 
They  will  therefore  be  considered  together.  Vattel  defined  domicile 
to  be  a  fixed  residence,  with  an  intention  of  always  staying  there.  This 
definition  is  too  limited  to  apply  to  the  migratory  habits  of  the  people 
of  this  country.  So  narrow  a  construction  would  deprive  a  large  pro- 
portion of  our  people  of  any  domicile.  The  better  definition  is,  that 
place  in  which  a  person  has  fixed  his  habitation,  without  any  present 

8  "It  is  probably  not  necessary  that,  in  order  to  work  a  chancre  of  domicile 
from  one  state  or  country  to  another,  the  person  whose  domicile  is  in  ques- 
tion should  reach  the  particular  spot  within  the  territorial  limits  of  the  lat- 
ter at  which  he  intends  fixing  his  permanent  abode;  and  indeed  it  may  per- 
haps be  said  that  it  is  not  absolutely  necessary  for  such  purpose  that  the  per- 
son should  ever  have,  either  in  fact  or  in  contemplation,  a  permanent  home 
within  any  particular  municipal  division  of  such  state  or  country.  Such  cases 
must  necessarily  be  rare,  but  it  is  possible  to  conceive  of  a  Frenchman,  for 
example,  coming  to  England  with  the  intention  of  permanently  remaining 
there,  but  without  ever  fixing  a  permanent  abode  in  any  particular  part  of 
that  country.  In  such  case,  while  it  would  doubtless  be  much  more  difficult 
to  prove  the  requisite  intention  than  if  he  had,  for  example,  purchased  a 
dwelling  house  and  fixed  himself  in  it  in  an  apparently  permanent  manner, 
yet,  assuming  the  requisite  intention  to  be  made  out  by  other  proofs,  there  is 
little  doubt  that  his  domicile  would  be  held  to  be  changed."  Jacobs  on  Dom- 
icile, §  133.  Accord:  Marks  v.  Marks  (C.  C.)  75  Fed.  321  (1896).  Contra: 
Cooper  v.  Beers,  143  111.  25,  33  N.  E.  61  (1892).  See,  also,  Arnott  v.  Groom, 
(1846),  9  Dunlop,  142 ;  In  re  Patience  (1885),  L.  R.  29  Ch.  D.  976 ;  Dicey,  Con- 
flict of  ,I.aws.  93-06. 

As  to  municipal  domicile,  where  the  boundary  line  passes  through  the  dwell- 
ing house,  see  Abington  v.  North  Bridgewater,  23  Pick.   (Mass.)   170  (1839) 


East  Montpelier  v.  City  of  Barre.  79  Vt.  542,  66  Atl.  100  (1900).  n^yJ^ 

It  has  been  held  that  a  shipmaster  may  acquire  a  domicile  without  actual  •*  -. -• -.-^  -  *****  ^*^  '~' 

presence  by  sending  his  wife  to  a  state  with  the  intent  to  make  it  his  home. 


It  has  been  held  that  a  shipmaster  may  acquire  a  domicile  without  actual  l|  qj$j^>l» ^ 
presence  by  sending  his  wife  to  a  state  with  the  intent  to  make  it  his  home.  \\  y^fp,^ 
Bancs  v.  Brewster,  111  Mass.  382  (1873).     But  see  Hart  v.  Horn,  4  Kan.  232/^  ^' 


(1867). 

A  party  may  have  a  separate  "commercial  domicile"  which  is  based  upon 
mere  residence.  It  is  of  importance  in  case  of  war  to  detennine  whether  a 
person  is  an  alien  enemy.     See  Dicey,  Conflict  of  Laws,  740-745. 


100  GENERAL  TROvisioxs.  (Part  1 

intention  of  removing  therefrom.  1  Bouv.  Law  Die.  499 ;  Story's 
Confl.  of  Laws,  §  43 ;  Putnam  v.  Johnson,  10  Mass.  488 ;  Greene  v. 
Windham,  13  Me.  225 ;  Appeal  of  Carey,  75  Pa.  201. 

The  evidence  in  this  case  shows  that  George  Hindman  was  born  in 
Brooke  county.  West  Virginia,  where  he  resided  till  1869.  Then  he 
moved  on  a  farm  which  he  had  purchased  in  Hancock  county,  of  the 
same  state.  There  he  resided  until  March,  1871.  He  then  sold  his 
farm,  which  vv'as  all  the  real  estate  he  owned,  and  went  to  live  with 
. .  •^^''CA^/yC'.  his  brother-in-law,  McClurg,  in  Washington_counix>_JEennsvlvania. 
^"^^  He~never  marrTec[7 ancTTiad  no  family.     His  property  was  all  in  per- 

sonal estate.  He  took  with  him  a  horse,  a  box  containing  his  notes, 
bonds  and  valuable  papers.  Soon  afterwards  he  brought  his  other 
horse  to  McClurg's  leaving  in  Virginia  only  some  farming  implements 
of  little  value.  He  continued  to  live  with  McClurg,  paying  his  board, 
and  there  made  his  home  until  April,  1872.  He  then  went  to  live  with 
Gibson,  another  brother-in-law,  in  Washington  county,  taking  with 
him  his  box,  a  bureau,  clock  and  table.  There  he  continued  to  live 
until  the  time  of  his  death,  22d  June,  1872.  All  these  facts  appear  by 
the  evidence  and  by  the  auditor's  report,  and  are  uncontradicted.  Al- 
though he  thus  resided,  and  made  his  home  in  this  state  for  about 
fifteen  months,  and  died  here,  yet  the  auditor  and  court  below,  found 
that  he  was  domiciled  in  West  Virginia  at  the  time  of  his  death. 
They  appear  to  have  reached  this  conclusion,  from  his  declarations 
made  while  he  was  residing  in  Pennsylvania. 

The  evidence  shows  that  after  he  thus  removed  from  West  Virginia, 
he  at  different  times  made  visits  to  friends  in  that  state,  yet  he  always 
returned  to  the  room  which  he  retained  at  the  house  of  his  brother- 
in-law  in  Pennsylvania.  Here  was  his  property  and  his  home.  He 
had  no  house,  no  residence,  no  property,  no  family  in  the  state  from 
which' he  had  moved.  When  he  sold  the  farm  on  which  he  had  lived, 
he  gave  up  possession  and  removed  therefrom.  He  thereby  gave  up 
that  domicile.  He  then  made  no  new  abode,  and  established  no  other 
residence  in  that  state.  He  gathered  up  his  property,  and  with  it 
departed,  and  located  in  another  state.  This  unequivocal  act  of  jttov- 
ing  from  the  state  and  takmg  up  his  resideiice  m"  another  st'ate,  is  very 
strong  evklence  ofthe  estab]isl2i2ient  0-i_a  donTicile  inHielatter!  ^Its 
effect  is  not  destroved  by_liis_expressed  and  indefinite  intention  to~go 
back  into  ^^st_JV^ginia^_at_some  future  tmie  an^Tthefelmy^Jsnd. 
Nothing  less  than  a  present  intention  to  retam  hisTTniTuVilp  tTTf_i^w^"^'^ 
prcvait  Ita  trciii'jfeFto  the  state  into  which  he  moygd.  He  did  not  come 
into  Pennsylvania  for  his  health,  or  as  a  traveller,  nor  for  any  other 
particular  business  of  a  temporary  nature.  No  person  can  have  more 
than  one  domicile  at  the  same  time  in  regard  to  succession  to  personal 
property.     Abington  v.  North  Bridgewater,  23  Pick.  (Mass.)  170. 

It  is  true  that  a  domicile  once  gained  remains  until  a  new  one  is 
actually  acquired,  facto  et  animo.     Story  on  Conflict  of  Laws, 
The  fact  and  intention  must  concur,  yet  the  former  may  proxf 


.de  and         tiAt*\      -  ^aJ^ 


Ch.    5)  DOMICILE.  191 

lattejL^A  mere  intention  to  remove  permanently,  without  an  actual 
removal,  works  no  change  of  domicile ;  nor  does  a  mere  removal  from 
the  state,  without  an  intention  to  reside  elsewhere.  But  when  a  per- 
son sells  all  his  land,  gives  up  all  his  business  in  the  state  in  which  he 
had  lived,  takes  his  movable  property  with  him  and  establishes  his 
home  in  another  state,  such  acts  prima  facie  prove  a  change  of  domi- 
cile. Vague  and  uncertain  evidence  cannot  remove  the  legal  presump- 
tion thus  created.  Story  on  Conflict  of  Laws,  §  46;  Wilbraham  v. 
Ludlow,  99  Mass.  5S7;  Harris  v.  Firth,  4  Cranch,  C.  C.  (U.  S.)  TIO, 
Fed.  Cas.  No.  6,120. 

The  e,vidence  of  Hindman's  declarations  shows  he  had  a  fick 
uncertain  mm^  Sometimes  he  expressed  an  intention  to  buy 
in  Brooke  county,  at  other  times,  in  Hancock  county,  then  in  Washing- 
ton county ;  sometimes  complaining  of  the  collateral  inheritance  tax 
of  Pennsylvania,  and  declaring  that  he  did  not  want  to  become  a  citi-  ^^^ 
zen  of  this  state,  but  would  go  back  and  make  Virginia  his  home,  • 
and  that  he  never  intended  to  pay  any  tax  in  this  state.  He  refused 
to  be  assessed  or  registered,  and  did  not  vote  in  Pennsylvania.  It, 
however,  does  not  appear  after  he  moved  here,  that  he  was  either  as- 
sessed or  registered  in  West  Virginia,  or  voted  there.  Soon  after 
paying  his  taxes,  the  1st  of  November  1871,  assessed  against  him  in 
Virginia  prior  to  his  sale,  he  said  to  Gardner  it  was  the  last  tax  he 
ever  expected  to  pay  in  Virginia,  and  soon  thereafter  declared  he  did 
not  want  land,  as  he  could  do  better  with  his  money  than  by  farming. 
Again,  in  January,  1872,  he  said  to  Samuel  Hindman  that  he  wanted* 
no  more  land,  and  would  make  his  home  in  Pennsylvania.  After  this 
he  again  talked  of  buying  land  in  Virginia.  Without  giving  more  of 
the  evidence  in  detail,  the  whole  of  it  tends  to  show  that  he  gave  up 
his  domicile  in  West  Virginia  and  acquired  one  in  Pennsylvania ;  that 
at  first  he  intended  to  purchase  a  farm,  and  wherever  that  should  be. 
to  go  and  reside  on  it.  While  he  talked  of  purchasing  in  each  state, 
yet  his  preference  appeared  to  be  in  favor  of  one  in  Virginia.  He 
seems  to  have  avoided  all  assessments  and  all  taxes  everywhere,  for 
the  time  he  lived  in  Pennsylvania.  He  made  no  purchase  anywhere. 
As  time  ran  on  he  became  less  desirous  of  purchasing  land.  During 
the  last  two  or  three  months  of  his  life,  he  made  no  mention  of  land. 
As  he  had  only  indicated  an  intention  of  returning  to  Virginia  in  con- 
nection with  his  purchasing  land  there,  when  he  ceased  to  talk  about 
the  purchase  of  land  he  said  no  more  about  returning  to  Virginia. 
It  was  said  in  Abington  v.  North  Bridgewater,  supra,  ''it  depends  not 
upon  proving  particular  facts,_  but.  \vhethg|ijJl_the^i:ls_aniJ_XLr£im.i- , 
stances  taken  together^  tending  to  show  that  a  man  h^sjiis 
domicile  in  one  plac£^_oyerbalance  all  the  like  proofs  tending  to  estab- 
lish  it  in  another." 

Applying  this  rule,  which  we  believe  a  correct  one,  we  think  all 
the  facts  and  circumstances  proved  clearly  preponderate  in  favor  of 
his  domicile  in  Pennsvlvania.     The  conclusion  to  which  we  have  ar- 


^>^ 


192  GENERAL  TRO  VISIONS.  (Part  1 

rived,  must  not  be  understood  as  changing  the  rule  in  regard  to  the 
force  to  be  given  to  an  auditor's  finding  of  facts.  When  he  reports 
facts  directly  proved  by  the  witnesses,  his  report  is  entitled  to  great 
weight.  But  when  the  fact  is  simply  a  deduction  from  other  facts 
reported  by  him,  his  conclusion  is  the  result  of  reasoning,  the  correct- 
ness of  which  we  are  as  competent  to  judge  as  he.  We  will  therefore 
review  such  result,  and  correct  it  if  we  discover  error  therein.  Phil- 
lips' Appeal,  68  Pa.  130 ;  Moyer's  Appeal,  77  Pa.  482. 

The  learned  judge  erred  in  the  effect  he  gave  to  the  declarations, 
followed  by  no  corresponding  action  changing  the  domicile.  The 
distribution  must  be  made  according  to  the  intestate  laws  of  Penn- 
sylvania. 

Decree  reversed  and  record  remanded  with  instructions  to  decree 
distribution  conformably  with  this  opinion.* 

>    I  ^^  REED'S  WILL. 

(Supreme  Court  of  Oregon,  1906.    48  Or.  500,  87  Pac.  763,  9  L.  E.  A.  [N.  S.] 

1159.) 

Bean,  C.  j.b  *  *  *  ^\^q  animus  or  intent  is,  therefore,  as  es- 
sential to  a  change  of  domicile  as  the  fact  of  residence.  To  lose  a 
dom|cile_j^li£nr-etficc  acqmi:£d,._tliere  must  be  an  intention^tajip  so.  A_ 
mere  ^hange  of  the  place  ^fjabode,  however  long  continued,  is  not 
sufficient,  unless  the  prqper_animus  or  intention  li~pfesent.  Thts  in- 
tention, it  is  true,  may  be  inferred  from  circumstances,  and  the  resi- 
dence may  be  of  such  a  character  and  accompanied  by  such  hrdTces  of 
a  permaiient  home  thatjthejav^^  will  apply  tojthe  facts  a  re^^nlt  r.f^r\\r:^ry 
to  the  actual  intention  of  the  party.  TTius  one  cannot  make  a  perma- 
nent fixed  conimercial  residence  with  all  the  surroundings  of  a  perma- 
nent home  in  one  place  and  a  domicile  in  another  by  a  mere  mental 
act.  But  a  rglidence  for  mere_pleasure  or  health  is  not  regarded  as 
of  any  great3^eight  in  determining  the  question  of  a  change  of  domi- 
cile,  forTin  such  case  it  is  just  as  likely  that  the  party  intends  to  re- 
tain as  to  abandon  his  present  domicjje.  The  books  abound  in  cases 
"where  absences  for  20,  30,  and  even  40  years  effect  no  change  of  domi- 
cile. White  V.  Brown,  1  Wall.  C.  C.  (U.  S.)  217,  Fed.  Cas.  No. 
17,538 ;  Re  Domingo  Capdevielle,  10  Jur.  1155 ;  Jopp  v.  Wood,  4  De  G. 
J.  &  S.  616 ;  Hodgson  v.  Beauchesne,  12  P.  C.  285 ;  Cruger  v.  Phelps, 
21  Misc.  Rep.  252,  47  N.  Y.  Supp.  61.     And  Sir  John  Dodson  says 

4  "Where  a  person  has  either  no  fixed  place  of  residence,  or  has  two  homes, 

and  the  scale  Is  almost  evenly  balanced  between  them,  the  legal  presumption 

is  in  favor  of  what  is  called  V]/)n|ipilp  fif  nnVin,'  hv  which  is  meant,  not  the 

j_^  place  where  he  may  chance  to  have  been  born,  but  tbiLjiome  of  his  parents." 

^!3yV^  JirV  •  Coine^ys,  C.  J.,  in  Prettyman  v.  Oonaway,  9  Iloust.   (Del.)  221,  32  Atl.  151 

(1891). 

6A  part  of  the  opinion  only  is  given. 


^^ 


Ch.   5)  DOMICILE.  193 

in  Bremer  v.  Freeman,  10  Moore,  P.  C.  306 :  "A  person  may  live  50 
years  in  a  place,  and  not  acquire  a  domicile,  for  he  may  have  had  all 
the  time  an  intention  to  return  to  his  own  country,"  And  Mr.  Jacobs 
says :  "Residence  of  itself,  although  decisive  of  the  factum  necessary 
for  a  change  of  domicile,  is  decisive  of  nothing  further,  and  evn  when 
long  continued,  although  per  se  evidence  of  intention,  will  not  supply 
its  place.  *  *  *  Intention  must  concur  with  fact,  and  must  clearly 
appear.  On  the  one  hand,  the  shortest  residence  is  sufficient  if  the 
requisite  animus  be  present,  and,  on  the  other,  the  longest  will  not 
suffice  if  it  be  absent."     Jacobs,  Domicile,  §  136. 

The  residence  of  Mr.  and  Mrs.  Reed  at  Pasadena  admittedly  was 
for  health  and  pleasure,  and  not  business.  It  was,  therefore,  not  of 
that  permanent  commercial  or  business  character  which  will  in  law 
constitute  a  change  of  domicile  regardless  of  the  intention  of  the  par- 
ties. Nor  was  it  of  such  a  character  as  will  overcome  the  presumption 
that  their  former  domicile  at  Portland  continued.  We  must,  therefore, 
look  to  the  evidence  to  ascertain  whether  in  fact  they  intended  to 
abandon  their  Portland  domicile  and  acquire  a  new  one  in  California, 
and  in  doing  so  it  is  important  to  bear  in  mind  their  situation  at  the 
time  of  their  removal,  the  causes  which  prompted  it.  its  purpose  and 
the  place  to  which  they  removed.  Mr.  Reed  was  in  failing  health  and 
had  been  compelled  to  cease  active  participation  in  his  business  affairs. 
It  was  necessary,  as  he  thought,  and  as  he  was  advised  by  his  physi- 
cians, to  seek  a  more  congenial  climate  than  tljat  of  Oregon.  For 
this  purpose  he  visited  California,  and,  aft^r  examining  several  places 
or  localities,  finally  selected  Pasadena,  which,  as  one  of  the  witnesses 
testified  is  "a  health  resort."  A  large  part  of  its  population  "come 
there  and  away  again";  "two-thirds  of  it  was  temporary."  "The 
temporary  class  is  composed  largely  of  people  who  come  in  search 
of  health."  To  this  character  of  a  location  Mr.  and  Mrs.  Reed  moved, 
because  its  climatic  conditions  and  general  surroundings  would,  it  v;as 
thought,  conduce  to  their  personal  comfort  and  the  improvement  of 
Mr  Reed's  health.  They  did  not  make  any  investments  in  Pasadena 
except  such  as  seemed  to  them  necessary  for  their  comfort  and 
pleasure.  T\fr_JRped-4T<4^ot  di^pot^p  of  hiq  Portland  property^  nr  n-^^lce 
any  ch^ncrp  in  hk  ]-.^i,<;inpQS— a.fi£a.ir<;  'Ff'p  rpt^inpd  his  office  and  hnnk 
account  in  Portland,  and  his  entire  conduxt  npgativpc;  an  intentioi)  to 
abandon  his  Portland  domicile  or  to  acquirp  another.  ]\Ir.  Reed's 
health  did  not  improve,  and  he  died  in  1895,  devising  and  bequeathing 
his  property  to  his  wife.  ]\Irs.  Reed  continued  to  reside  in  Pasadena 
as  before,  without  making  any  change  in  her  business  affairs  or  in- 
dicating in  any  way  a  purpose  to  change  her  domicile.  She  continued 
her  church  connection  in  Portland,  makinp-  reo-ular  contributions  for 
its_su£port__and  to  its  charities.^  She  described  herself  in  numerous 
documents  and  m  tier  will  as  a  resident  of  Portland  temporarily. 
residing  at  Pasadena,  and  the  very  terms  of  the  will  itself  indicate 
that  she  considered  Portland  as  her  home,  and  entitled  to  receive  her 

LOR.CONF.L.— 13 


194 


GENERAL  PROVISIONS. 


(Part  1 


charitable  bequests.  The  acts  of  Mr.  and  Mrs.  Reed  and  the  un- 
disputed facts  surrounding  and  characterizing  their  removal  from 
Portland  to  California,  and  their  subsequent  residence  in  Pasadena, 
show  to  our  minds  quite  clearly  that  they  at  all  times  deemed  and 
considered  their  residence  there  as  temporary  rather  than  permanent, 
and  that  Portland  was  their  legal  domicile.  The  decided  weight  of 
the  testimony  as  to  their  purposes  as  declared  by  them  is  to  the  same 
effect.    *     *     *  6 


IP 


^ 


V> 


UDNY  V.  UDNY. 


0^ 


(House  of  Lords,  1860.     L.  R.  1  H.  L.  [Sc]  441.) 

The  late  Colonel  John  Robert  Fullerton  Udny,  of  Udny,  in  the 
county  of  Aberdeen,  though  born  at  Leghorn,  where'  his  father  was 
consul,  had  by  paternity  his  domicile  in  Scotland.  At  the  age  of  fif- 
teen, in  the  year  1794,  he  was  sent  to  Edinburgh,  where  he  remained 
for  three  years.  In  1797  he  became  an  officer  in  the  Guards.  In  1802 
he  succeeded  to  the  family  estate.  In  1813  he  married  Miss  Emily 
Fitzhugh,  retired  from  the  army,  and  took  upon  lease  a  house  in  Lon- 
don, where  he  resided  for  thirty-two  years,  paying  occasional  visits 
to  Aberdeenshire. 

In  1844,  having  got  into  pecuniary  difficulties,  he  broke  up  his  es- 
tablishment in  Lond(5n  and  repaired  to  Boulogne,  where  he  remained 
for  nine  years,  occasionally,  as  before,  visiting  Scotland.  In  1846 
his  wife  died,  leaving  the  only  child  of  her  marriage,  a  son,  who,  in 
1859,  died  a  bachelor. 

Some  time  after  the  death  of  his  wife  Colonel  Udny  formed  at 
Boulogne  a  connection  with  Miss  Ann  Allat,  which  resulted  in  the 
birth  at  Camberwell,  in  Surrey,  on  the  9th  of  May,  1853,  of  a  son,  the 

6  See  Dicey,  Conflict  of  Laws,  149-158. 

"  'Residence'  is  tlie  favorite  term  employed  by  the  American  legislator  to 
express  the  connection  between  person  and  place,  its  exact  significatiori  being 
left  to  construction,  to  be  determined  from  the  context  and  the  apparent  ob- 
ject sought  to  be  attained  by  the  enactment.  It  is  to  be  regretted  that  these 
lights  are  often  very  feeble,  and  that  not  a  little  confusion  has  been  intro- 
duced into  our  jurisprudence  by  the  different  views  held  by  different  courts 
with  regard  to  the  exact  force  of  this  and  similar  words  when  applied  to  sub- 
stantially the  same  subject-matter.  'Resideuce,'  when  used  in  statutes,  is  gen- 
erally construed  to  mean  'domicile,'  In  tact,  tne  great  bulk  or  tne  cases"  of 
TlftniiCilS  reportea  m  the  American  boolis  are  cases  of  statutory  residence. 
This  is  especially  true  with  regard  to  the  subjects  of  voting,  eligibility  to  office, 
taxation,  jurisdiction  in  divorce,  probate,  and  administration,  etc.  With  re- 
spect to  tliese  subjects  there  is  substantial  unanimity  in  this  country  in  holding 
statutory  residence  to  mean  domicile.  In  cases  of  pauper  settlement,  limita- 
tions, etc.,  there  is  much  conflict  of  opinion,  and  in  those  of  attachment  the 
weight  of  authority  is  the  other  way."    Jacobs  on  Domicile,  §  75. 

Statutory  inhabitancy  is  often  held  to  be  equivalent  to  domicile.  Otis  v. 
City  of  Boston,  12  Cush.  (Mass.)  44  (1853)  ;  Harvard  College  v.  Gore,  5  Piclj. 
(Mass.)  370  (1827);  Borland  v.  City  of  Boston,  132  Mass.  89,  42  Am.  Rep. 
424  (1882) ;   Jacobs  on  Domicile,  §  7G. 


Ch.   5)  DOMICILE.  195 

above  respondent,  whose  parents  were  undoubtedly  unmarrfed  when 
he  came  into  the  world.  They  were,  however,  united  afterwards  in 
holy  matrimony  at  Ormiston,  in  Scotland,  on  the  2d  of  January,  1854, 
and  the  question  was  whether  the  respondent,  under  the  circumstances 
of  the  case,  had  become  legitimate  per  subsequens  matrimonium. 

The  Court  of  Session  (First  Division)  on  the  14th  of  December, 
1866  (3d  Series,  vol.  5,  p.  164),  decided  that  Colonel  Udny's  domicile 
of  origin  was  Scotch,  and  that  he  had  never  altered  or  lost  it,  notwith- 
standing his  long  absence  from  Scotland.  They  therefore  found  that 
his  son,  the  respondent,  "though  illegitimate  at  his  birth,  was  legiti- 
mated by  the  subsequent  marriage  of  his  parents."  Hence  this  appeal, 
which  the  House  regarded  as  involving  questions  of  greatly  more 
than  ordinary  importance. 

Lord  Westbury.''  The  law  of  England,  and  of  almost  all  civilized 
countries,  ascribes  to  each  individual  at  his  birth  two  distinct  legal 
states  or  conditions;  one  by  virtue  of  which  he  becomes  the  subject 
of  some  particular  country,  binding  him  by  the  tie  of  natural  allegiance, 
and  which  may  be  called  his  political  status;  another,  by  virtue  of 
which  he  has  ascribed  to  him  the  character  of  a  citizen  of  some  par- 
ticular country,  and  as  such  is  possessed  of  certain  municipal  rights, 
and  subject  to  certain  obligations,  which  latter  character  is  the  civil 
status  or  condition  of  the  individual,  and  may  be  quite  different  from 
his  political  status.  The  political  status  may  depend  on  different  laws 
in  different  countries ;  whereas  the  civil  status  is  governed  universally 
by  one  single  principle,  namely,  that  of  domicile,  which  is  the  criterion 
established  by  law  for  the  purpose  of  determining  civil  status.  For 
it  is  on  this  basis  that  the  personal  rights  of  the  party,  that  is  to  say, 
the  law  which  determines  his  majority  or  minority,  his  marriage, 
succession,  testacy,  or  intestacy,  must  depend.  International  law  de- 
pends on  rules  which,  being  in  great  measure  derived  from  the  Ro- 
man law,  are  common  to  the  jurisprudence  of  all  civilized  nations. 
It  is  a  settled  principle  that  no  man  shall  be  without  a  domicile,  and  to 
secure  this  result  the  law  attributes  to  every  individual  as  soon  as  he 
is  born  the  domicile  of  his  father,  if  the  child  be  legitimate,  and  the 
domicile  of  the  mother  if  illegitimate.  This  has  been  called  the  dom- 
icile of  origin,  and  is  involuntary.  Other  domiciles,  including  domicile 
by  operation  of  law,  as  on  marriage,  are  domiciles  of  choice.  For  as 
soon  as  an  individual  is  sui  juris  it  is  competent  to  hini  to  elect  and 
assume  another  domicile  the  continuance  of  which  depends  upon  his  ftju 

will  and  act.  When  another  domicile  is  put  on,  the  domi-cile  of.  origin 
is  for  that  purpose  relinquished,  and  remains  in  abeyance  during  the 
continuance  Of  the  domicile  of  choice;  but  as'the'dbrrircile  H  origin 
the  creature  of  law,  and  independent  of  the  will  of  the  party,  it  would 
be  inconsistent  with  the  principles  on  which  it  is  by  law  created  and 
ascribed,  to  suppose  that  it  is  capable  of  being  by  the  act  of  the  party 


7  The  concurring  opinions  of  tlie  Lord   Chaucellor,   Lord  Clielmsford,  and 
Lord  Colonsay  have  been  omitted. 


j/P  196 


GENERAL  PROVISIONS, 


(Part  1 


0^ 


® 


'^A 


7" 


entirely  obliterated  and  extinguished.  It  revives  and  exists  whenever 
there  is  no  other  domicile,  and  it  does  not  require  to  be  regainednrr 
reconstituted  animo  et  facto,  in  the  manner  which  is  necessary  for  the 
acquisition  of  a  domicile  of  choice. 

Domicile   of   choice   is   a   conclusion   or    inference   which   the    law 
derives  from  the  fact  of  a  man  fixing  voluntarily  his  sole  or  chief  resi- 
j.       xr        dence  in  a  particular  place,  with  an  intention  of  continuing  to  reside 
^^    "y*!  there  for  an  unlimited  time.    This  is  a  description  of  the  circumstances 

^  -       l/T     jy    ly'    which  create  or  constitute  a  domicile,  and  not  a  definition  of  the  term. 
iM     ^/^\J    i  N^        There  must  be  a  residence  freely  chosen,  and  not  prescribed  or  dictated 
^f'^        Jj^  by  any  external  necessity,  such  as  the  duties  of  office,  the  demands  of 

^\^    <^>t    I  creditors,  or  the  relief  from  illness;    and  it  must  be  residence  fixed 

*)      i*>    flT^  ^     "ot  for  a  limited  period  or  particular  purpose,  but  general  and  indef- 
tr  (^tr      '>X^   \j  inite  in  its  future  contemplation.     It  is  true  that  residence  originally 

"  -  ^  Sl  ^t'Nk  temporary,  or  intended  for  a  limited  period,  may  afterwards  become 
general  and  unlimited,  and  in  such  a  case  so  soon  as  the  change  of  pur- 
pose, or  animus  manendi,  can  be  inferred  the  fact  of  domicile  is  es- 
tablished. 

The  domicile  of  origin  may  be  extinguished  by  act  of  law,  as,  for 

example,  by  sentence  of  death  or  exile  for  life,  which  puts  an  end  to 

P^  ^  H  ]  the  status  civilis  of  the  criminal;   but  it  cannot  be  destroyed  by  the 

\t^  i^  will  and  act  of  the  party. 

^/  Domicile  of  choice,  as  it  is  gained  animo  et  facto,  so  it  may  be  put 

an  end  to  in  the  same  manner.  Expressions  are  found  in  some  books, 
and  in  one  or  two  cases,  that  the  first  or  existing  domicile  remains  until 
another  is  acquired.  This  is  true  if  applied  to  the  domicile  of  origin, 
but  cannot  be  true  if  such  general  words  were  intended  (which  is  not 
probable)  to  convey  the  conclusion  that  a  domicile  of  choice,  though 
unequivocally  relinquished  and  abandoned,  clings,  in  despite  of  his  will 
and  acts,  to  the  party,  until  another  domicile  has  animo  et  facto  been 
acquired.  The  cases  to  which  I  have  referred  are,  in  my  opinion, 
met  and  controlled  by  other  decisions.  A  natural-born  Englishman 
may,  if  he  domiciles  himself  in  Holland,  acquire  and  have  the  status 
civilis  of  a  Dutchman,  which  is  of  course  ascribed  to  him  in  respect 
•  of  his  settled  abode  in  the  land,  but  if  he  breaks  up  his  establishment, 
sells  his  house  and  furniture,  discharges  his  servants,  and  quits  Hol- 
land, declaring  that  he  will  never  return  to  it  again,  and  taking  with 
him  his  wife  and  children,  for  the  purpose  of  travelling  in  France 
or  Italy  in  search  of  another  place  of  residence,  is  it  meant  to  be  said 
that  he  carries  his  Dutch  domicile,  that  is,  his  Dutch  citizenship,  at  his 
back,  and  that  it  clings  to  him  pertinaciously  until  he  has  finally  set  up 
his  tabernacle  in  another  country?  Such  a  conclusion  would  be  ab- 
surd; but  there  is  no  absurdity  and,  on  the  contrary,  much  reason, 
in  holding  that  an  acquired  domicile  may  be  effectually  abandoned 
by  unequivocal  intention  and  act ;  and  that  when  it  is  so  determined 
the  domicile  of  origin  revives  until  a  new  domicile  of  choice  be  acquir- 
ed.   According  to  the  dicta  in  the  books  and  cases  referred  to,  if  the 


-Ch.  5) 


DOMICILE. 


197 


Englishman  whose  case  we  have  been  supposing  lived  for  twenty- 
years  after  he  had  finally  quitted  Holland,  without  acquiring  a  new 
domicile,  and  afterwards  died  intestate,  his  personal  estate  would  be 
administered  according  to  the  law  of  Holland,  and  not  according  to 
that  of  his  native  country.  This  is  an  irrational  consequence  of  the 
supposed  rule.  But  when  a  proposition  supposed  to  be  authorized  by 
one  or  more  decisions  involves  absurd  results,  there  is  a  great  reason 
for  believing  that  no  such  rule  was  intended  to  be  laid  down. 

In  Mr.  Justice  Story's  Conflict  of  Laws  (the  last  edition)  it  is 
stated  ''that  the  moment  the  foreign  domicile  (that  is  the  domicile  of 
choice)  is  abandoned,  the  native  domicile  or  domicile  of  origin  is  re- 
acquired." 

And  such  appears  to  be  the  just  conclusion  from  several  decided 
cases,  as  well  as  from  the  principles  of  the  law  of  domicile. 

In  adverting  to  Mr.  Justice  Story's  work,  I  am  obliged  to  dissent 
from  a  conclusion  stated  in  the  last  edition  of  that  useful  book,  and 
which  is  thus  expressed:  "The  result  of  the  more  recent  English  cases 
seems  to  be,  that  for  a  change  of  national  domicile  there  must  be  a 
definite  and  effectual  change  of  nationality."  In  support  of  this  prop- 
osition the  editor  refers  to  some  words  which  appear  to  have  fallen 
from  a  noble  and  learned  lord  in  addressing  this  House  in  the  case 
of  Moorehouse  v.  Lord,  10  H.  L.  C.  272,  when  in  speaking  of  the  ac- 
quisition of  a  French  domicile,  Lord  Kingsdown  says:  "A  man  must 
intend  to  become  a  Frenchman  instead  of  an  Englishman." 

These  words  are  likely  to  mislead,  if  they  were  intended  to  signify 
that  for  a  change  of  domicile  there  must  be  a  change  of  nationality, 
that  is,  of  natural  allegiance. 

That  would  be  to  confound  the  political  and  civil  status  of  an  individ- 
ual, and  to  destroy  the  difference  between  patria  and  domicilium. 

The  application  of  these  general  rules  to  the  circumstances  of  the 
present  case  is  very  simple.  I  concur  with  my  noble  and  learned  friend 
that  the  father  of  Colonel  Udny,  the  consul  at  Leghorn,  and  after- 
wards at  Venice,  and  again  at  Leghorn,  did  not  by  his  residence  there 
in  that  capacity  lose  his  Scotch  domicile.  Colonel  Udny  was,  there- 
fore, a  Scotchman  by  birth.  But  I  am  certainly  inclined  to  think  that 
when  Colonel  Udny  married,  and  (to  use  the  ordinary  phrase)  settled 
in  life  and  took  a  long  lease  of  a  house  in  Grosvenor  street,  and  made 
that  a  place  of  abode  of  himself  and  his  wife  and  children,  becoming, 
in  point  of  fact,  subject  to  the  municipal  duties  of  a  resident  in  that 
locality;  and  when  he  had  remained  there  for  a  period,  I  think,  of 
thirty-two  years,  there  being  no  obstacle  in  point  of  fortune,  occupa- 
tion, or  duty,  to  his  going  to  reside  in  his  native  country ;  under  these 
circumstances,  I  should  come  to  the  conclusion,  if  it  were  necessary 
to  decide  the  point,  that  Colonel  Udny  deliberately  chose  and  acquired 
an  English  dofnicile.  But  if  he  did  so,  he  as  certainly  relinquished 
that  English  domicile  in  the  most  effectual  way  by  selling  or  surrender- 
ing the  lease  of  his  house,  selling  his  furniture,  discharging  his  serv- 


c^fk'^ 


P^. 


>^ 


198 


GENERAL  PROVISIONS. 


(Part  1 


ants,  and  leaving  London  in  a  manner  which  removes  all  doubt  of  his 
ever  intending  to  return  there  for  the  purpose  of  residence.  If,  there- 
fore, he  acquired  an  English  domicile,  he  abandoned  it  absolutely  ani- 
mo  et  facto.  Its  acquisition  being  a  thing  of  choice,  it  was  equally 
put  an  end  to  by  choice.  He  lost  it  the  moment  he  set  foot  on  the 
steamer  to  go  to  Boulogne,  and  at  the  same  time  his  domicile  of  ori- 
gin revived.  The  rest  is  plain.  The  marriage  and  the  consequences  of 
that  marriage  must  be  determined  by  the  law  of  Scotland,  the  country 
of  his  domicile.* 


A, 


FIRST  NAT.  BANK  OF  NEW  HAVEN  v.  BALCOM. 
(Supreme  Court  of  EiTors  of  Connecticut,  186S.     35  Conn.  351.) 

Park,  J.^  The  principal  question  in  this  case  is  in  regard  to  the 
domicile  of  Mrs.  Lewin  at  the  time  of  her  death.  She  died  in  the 
state  of  New  York,  and  the  administrator  of  her  estate  claims  thai 
her  domicile  at  the  time  was  in  Connecticut ;  while  the  administrator 
of  the  estate  of  her  husband  claims  that  it  was  in  the  state  of  New 
York. 

It  appears  by  the  finding  of  the  court  that  her  husband  was  a 
native  of  the  state  of  New  York;  that  he  married  Mrs.  Lewin  while 
temporarily  residing  in  Connecticut;  that  immediately  after  their  mar- 
riage they  went  to  the  state  of  Missouri,  and  resided  there  till  the 
spring  of  1862,  when  they  returned  to  Connecticut,  and  after  residing 
at  various  places  in  the  state,  became  permanently  located  in  the  town 
of  Branford.  While  their  domicile  continued  there,  Mrs.  Lewin  re- 
ceived a  bequest  that  had  been  left  her  by  her  brother.  Sometime  in 
the  spring  of  1866  Mr.  Lewin  and  his  wife  left  Branford  with  the  in- 
tent to  abandon  his  residence  there,  and  went  to  Geneseo  in  the  state 
of  New  York,  where  he  remained  till  the  death  of  his  wife,  which  oc- 
curred in  the  month  of  July  of  the  same  year. 

The  character  of  Mr.  Lewin's  residence  at  Geneseo  is  thus  described 
in  the  report  of  the  committee :  "He  did  not  go  to  Geneseo  with  the 
intent  to  adopt  that  place  as  a  place  of  permanent  residence.  He  and 
his  wife,  being  in  feeble  health,  went  to  Geneseo  for  the  purpose  of 
spending  the  summer  there  in  the  house  of  his  brother-in-law,  in  the 
hope  that  the  health  of  himself  and  wife  might  be  benefited  by  the 
change  of  air,  and  by  the  use  of  the  water  of  certain  mineral  springs 
near  Geneseo.  From  the  time  he  left  Branford  until  the  death  of 
his  wife  he  had  no  definite  intentions  in  regard  to  the  selection  of  anv 


sAccorrl:  Breinnie's  Estate,  2  Pa.  Dist.  R.  455  (1S03).  In  favor  of  doc- 
trine that  the  domicile  of  origin  reverts  upon  the  abandonment  of  a  domicile 
of  choice  with  the  intent  of  resuming  the  native  domicile,  see  Allen  v.  Thom- 
asou,  11  Humph,  (Tenn.)  536,  54  Am.  Dec.  55  (1851)  ;  Reed's  Appeal,  71  Pa. 
378  (1872). 

»  The  statement  of  facts  has  been  omitted. 


Ch.   5)  DOMICILE.  l99 

place  as  the  place  of  his  future  residence.  So  far  as  he  had  any  in- 
tention on  the  subject  it  was,  during-  the  whole  period  of  time,  an  in- 
tention conditional  and  uncertain,  whereby  all  decision  in  his  mind 
upon  the  question  was  left  in  abeyance,  to  be  determined  in  the  future 
by  the  turn  which  his  wife's  disease  might  take,  and  by  other  circum- 
stances which  might  or  might  not  arise." 

In  the  month  of  August  of  the  same  year  he  left  Geneseo  and  re- 
turned to  Connecticut,  and  not  long  afterwards  became  permanently 
settled  in  the  town  of  Windham.  These  facts  render  jt_a_ppareiitl^L 
clear  that  Mr.  Lewin  was  not  dQmiinle44ft-^fehe--ste4e-Qf_Iiew_J\[ork_^^ 
the  time  his  wiTe_cii£3I 

But  it  TFcTaimed  that,  inasmuch,a.s  hejw^j^.a  native  of  the  state  qj 

New  York,""  and  inasmuch  as  he  l^ffJPj-anfnrrl   with   no  nitpnfjnn   of  rp- 

turning  to  thajjTage' to.  reside,  and_went^  ta  the  state  of  New  YorL 
and  remained  there^in,  fact^foiL  a  time,  no  matter  what  the  character 
of  his  abidmg^^may  ha^e-bggn^  he_became  domiciled  there,  on  the  prin- 
ciple  that  p  Tif^|iyf  Hnmirilp  easily  reverts.  Would  it  be  claimed  that 
if  Mr.  Lewin  had  left  Branford  with  the  intent  to  take  up  his  resi- 
dence in  the  state  of  Ohio,  and  on  his  way  sojourned  a  few  days  in 
the  state  of  New  York,  that  would  be  sufficient?  And  what  real  differ- 
ence is  there  between  that  case  and  the  present?  In  both  cases  Mr. 
Lewin  had  no  intention  of  permanently  remaining  in  the  state  of  New 
York.  All  the  difference  there  is  consists  in  the  fact,  that  in  one  case 
his  mind  is  made  up  in  regard  to  his  future  residence  and  in  the  other 
it  is  not.  His  abiding  in  both  cases  is  temporary.  We  said  in  another 
case  upon  the  present  circuit,  that  a  temporary  residence  did  not 
change  its  character  by  mere  lapse  of  time.  Whether  it  is  longer  or 
shorter  it  is  temporary  still.  But  tliejrinciple  that  a  native  domicile  ^  cSt^-^f^ 
easily  reverts  applies  only  to  cases  where  a  native  citizen  of  one  country  .  i  ^juJ<*^o>^ 
goes  to~reside  in  a  foreign  countTyTarid  there  acquireF  a  domicile  by  "  f^^^^*^^^-^^ 
residence  without  renouncing TiTs~'Original  allegiance;  Ifr~such  cases 
his  native  domicile  reverts  as  soon  as  ne  begins  to  execute  an  inten~ 
tion  of  returning;  that  is,  from  the  time  that  he  puts  himself  in  mo-" 
tion  bona  fide  to  quit  the  country  sine  animo  revertendi,  because  the 
foreign  domicile  was  merely  adventitious,  and  de  facto,  and  prevails 
only  while  actual  and  complete.  The  Indian  Chief,  3  Rob.  Adm.  R. 
17,  24;  The  Venus,  8  Cranch  (U.  S.)  253,  280,  301,  3  L.  Ed.  553; 
State  V.  Hallett,  8  Ala.  159;  In  re  Miller's  Estate,  3  Rawle  (Pa.) 
312,  319,  24  Am.  Dec.  345;  The  Ann  Green,  1  Gall.  '(U.  S.)  275,  286, 
Fed.  Cas.  No.  414;  Catlin  v.  Gladding,  4  Mason  (U.  S.)  308,  Fed. 
Cas.  No.  2,520;   Matter  of  Wrigley,  8  Wend.  (N.  Y.)  134,  140. 

This  principle  has  reference  to  a  national  domicile  in  its  enlarg;ed 
sense,  afiTi~grQ5Sf^_^our[of  native  allegiance  or  citizenship.  It  has  no 
application  when  the  question  is  between  a  native  and  acquTred  dom- 
icile,  where  B6tlT^fe'~under~the~~same  national  jurisdiction.  It  wa^ 
so  held  in  the  case' of  IMonroe  v.  Douglas,  5  Maddock,  37^.  In  that 
case  the  question  was  Fet ween  the  native  domicile  of  a  party  in  Scot- 


iAj4ytV(SM£> 


200  GENERAL  PROVISIONS.  (Part  1 

land,  and  a  domicile  of  residence  acquired  by  the  same  party  in  India, 
and  the  Vice  Chancellor  said  he  could  find  no  difference  in  principle 
between  the  original  domicile  of  the  party  and  the  acquired  one  in  In- 
dia.    See,  also,  1  American  Leading  Cases,  743. 

If  this  principle  does  not  apply  to  the  case  in  question,  then  it 
follows  from  this  finding  that  Mr.  Lewin  had  no  domicile  in  the  state 
of  New  York  when  his  wife  died,  but  his  domicile  at  that  time  re- 
mained in  the  town  of  Branford,  in  accordance  with  the  maxims  that 
universally  prevail  in  relation  to  this  subject,  that  every  person  must 
have  a  domicile  somewhere,  that  he  can  have  but  one  domicile  for  one 
and  the  same  purpose,  and  that  a  domicile  once  acquired  continues 
until  another  is  established.  Abington  v.  North  Bridgewater,  23 
Pick.  (Mass.)  170;  Thorndike  v.  City  of  Boston,  1  Mete.  (Mass.)  242; 
Crawford  v.  Wilson,  4  Barb.  (N.  Y.)  504;  In  re  High,  2  Doug.  (Mich.) 
515 ;  Somerville  v.  Lord  Somerville,  5  Vesey,  750 ;  Greene  v.  Greene, 
11  Pick.  (Mass.)  410;  Walke  v.  Bank  of  Circleville,  15  Ohio,  288. 

It  is  claimed  further,  that  the  bonds  in  question  became  the  property 
of  Mr.  Lewin  by  donatio  causa  mortis.  But  it  is  clear  that  no  gift 
was  intended  by  Mrs.  Lewin,  as  plainly  appears  by  her  letter  to  the 
officers  of  the  bank,  and  besides,  a  gift  of  this  nature  must  be  made 
in  contemplation  of  the  approach  of  death  and  must  be  given  to  take 
effect  only  in  case  the  donor  dies.  Raymond  v.  Sellick,  10  Conn.  480. 
Nothing  of  this  kind  appears  in  the  case. 

Again,  it  is  claimed  that  the  court  of  probate  for  the  district  of  New 
Haven  granted  letters  of  administration  on  the  estate  of  Mr.  Lewin, 
as  domiciled  in  the  state  of  New  York;  and  it  is  insisted  that  this  is 
conclusive  on  the  subject.  But  the  judgment  of  a  court  of  limited  ju- 
risdiction is  never  conclusive  of  a  jurisdictional  question.  Its  juris- 
diction may  always  be  controverted.  Sears  v.  Terry,  26  Conn.  273 ; 
Jochumsen  v.  Suffolk  Sav.  Bank,  3  Allen  (Mass.)  87;  2  Redfield  on 
Wills,  49. 

We  advise  the  superior  court  that  the  administrator  of  the  estate 
of  Mrs.  Lewin  is  entitled  to  the  property.^** 

<=^         10  See  Minor,  Conflict  of  Laws,  §§  65,  66. 
,^j^  '  "Domicile  may  be  either  national  or  domestic — the  former,  In  which  nation- 

ality a  man  is  domiciled ;  and  the  latter,  in  which  subdivision  of  the  nation. 
And  in  this  respect  the  law  of  domicile  in  Louisiana,  in  relation  to  its  differ- 
ent political  subdivisions,  may  be  applied  to  the  change  of  domicile  from  one 
state  to  another.  In  not  keeping  in  view  the  distinction  between  the  two 
kinds  of  domicile,  in  some  cases  in  this  country,  the  domicile  of  birth,  as  rec- 
ognized in  England,  has  been  given  too  much  weight  in  estimating  the  value 
of  the  floating  intention  to  return  to  the  first  domicile.  The  conditions  which 
control  the  destinies  of  families  in  the  two  countries  are  materially  different. 
In  one  it  is  a  rule  to  keep  families  together.  They  grow  up  for  generations  on 
.    ,M-  ^  the  same  spot.     Local  traditions  control  them,  and  there  are  not  entirely  ob- 

/Y/Vr  '  0>/  "^       literated  some  influences  of  the  feudal  period.     Here,  the  customs,  the  habits 

^    '  '  of  the  people,  their  ceaseless  energies,  their  continuous  change  from  locality  to 

locality,   the  sudden  and  dense  population  of  new  places,  the  desertion  and 
.^  abandonment  of  old  ones,  all  sliow  that  the  people  are  migratory,  and  not 

^  much  influenced  by  birth,  locality,  or  Uie  local  history  of  families.     Hence  we 

conclude  that  it  will  require  the  same  facts  only  to  show  a  change  of  domicile 


1  y^ 


Ch.    5)  DOMICILE. 

HARRALL  v.  WALLIS. 

(Court  of  Chancery  of  New  Jersey,  1883.    37  N.  J.  Eq.  458.) 
See  post,  p.  592,  for  a  report  of  the  case. 


201 


In  re  YOUNG  JOHN  ALLEN. 
(United  States  Court  for  China,  1907.     1  Am.  J.  of  Int.  Law,  1029.) 

WiLFLEY,  J.  1.  In  view  of  the  well-established  principle  of  law  that 
the  personal  property  of  a  deceased  person  must  be  administered  ac- 
cording to  the  law  of  his  domicile,  it  becomes  necessary  at  the  outset 
to  determine  where  the  testator  in  the  will  here  presented  for  probate 
was  domiciled  at  the  date  of  his  death. 

The  facts  in  this  case  are  as  follows :  Dr.  Young  J.  Allen  was  born 
in  the  year  1836  in  the  state  of  Georgia.  In  1860  he  moved  to  China, 
where  he  lived  continuously  for  a  period  of  forty-seven  years.  He 
died  in  Shanghai  on  May  30,  1907.  China  was  the  chosen  field  of  his 
activities,  and  the  instruction  of  its  people  in  the  principles  of  Christian 
civilization  was  his  life  work.  Here  his  family  was  reared  and  now 
lives.  Here  his  estate,  consisting  solely  of  personal  property,  was  ac- 
cumulated, and  jt  was  his  oft  expressed  ini-pntinn  tn  rnake  China  his 
permanenj:  hoQTP  The  will  which  his  legal  representatives  now  pre- 
sent for  probate  is  wholly  in  his  own  handwriting,  and  was  duly  attest- 
ed by  two  witnesses.  Neither  of  these  witnesses,  however,  is  within 
the  jurisdiction  of  the  court.  This  being  the  case,  the  instrument  be- 
fore the  court  must  be  regarded  as  a  holographic  will,  which,  under 
the  common  law  now  in  force  in  China,  is  valid,  but  the  court  is  not 
informed  that  such  a  will  is  recognized  by  the  law  of  Georgia. 

These  facts  present  for  consideration  one  of  the  most  complex  and 
important  subjects  connected  with  the  operation  of  the  law  of  extrater- 
ritoriality. Succinctly  stated,  the^j£gaJjjuesti^nJiere_involved  is :  Can 
an  American  citizen  ac^ire  what  may_^e  termed  an^extraJerrrtorial 
domieile"  in  Chma?  Can  he  have^  aTdomicile  out  of  the  United  States 
in  which  he  is  nevertheless  governed  by  the  laws  of  the  United  States, 
or  must  he  retain  that  of  the  state  where  he  was  domiciled  before  set- 
tling in  China?  In  investigating  this  subject,  it  will  be  necessary  to 
have  a  clear  conception,  first,  of  the  American  law  of  domicile,  and, 
second,  of  the  true  meaning  of  extraterritoriality. 

2.  That  a  person  must  always  have  a  domicile  somewhere,  that  no 
person  may  have  more  than  one  domicile  at  a  time,  that  every  natural 

from  the  domicile  of  birth  that  it  would  require  to  show  a  change  from  one 
selected  domicile  to  another.  The  revival  of  the  intention  to  return  to  the 
domicile  of  birth  does  not  apply  when  the  domicile  of  origin  and  of  selection 
are  both  domestic.  Guier  v.  O'Daniel.  1  Am.  Lead.  Cas.  7.34."  McEnery,  J., 
in  Succession  of  Steers,  47  La.  Ann.  1551,  18  So.  503,  504  (1895). 


202 


GENERAL  PROVISIONS. 


(Part  1 


(JJ^' 


^ 


person  free  and  sul  juris  may  change  his  domicile  at  pleasure,  and  that 
civil  status,  with  its  attendant  rights  and  disabilities,  depends,  not  upon 
nationality  but  upon  domicile,  are  propositions  upon  which  the  author- 
ities are  universally  agreed.  While  domicile  has  been  defined  by  law 
writers  in  a  variety  of  ways,  "yet  there  are  two  elements  which  are  found 
in  all  definitions,  namely,  residence  and  animus  manendi,  or  intention 
of  continued  residence.  In  recent  years,  however,  there  has  been  a  ten- 
dency on  the  part  of  the  courts  to  modify  this  definition  by  substituting 
for  the  animus  manendi,  or  intention  of  residing  permanently  in  a  cer- 
Itain  place,  the  absence  of  the  animus  revertendi,  or  the  intention  of 
i  returning    to  the  place  of  former  residence. 

Vattel  defines  domicile  as  "an  habitation  fixed  in  some  place  with  the 
intention  of  remaining  there  always."  Savigny  says,  "That  place  is  to 
be  regarded  as  a  man's  domicile  which  he  has  freely  chosen  as  his  per- 
manent abode  (and  thus  for  the  center  at  once  of  his  legal  relations  and 
his  business)."  According  to  Judge  Story,  "That  place  is  properly  the 
domicile  of  a  person  in  which  his  habitation  is  fixed  without  any  pres- 
ent intention  of  removing  therefrom."  Phillimore  defines  it  as  "Res- 
idence at  a  particular  place  accompanied  with  (positive  or  presumptive 
proof  of)  an  intention  to  remain  there  for  an  unlimited  time."  The 
definition  of^^Vice  Chancellor  Kindersley^  while  lacking  in  precision,  is 
perhaps  more  comprehensive  than^any  of  the  foregoing.  It  is  as  fol- 
lows :  "That  place  is  properly  the  domicile  of  a  person  in  which  he 
has  voluntarily  fixed  the  habitation  of  himself  and  his  family,  not  for 
a  mere  special  and  temporary  purpose,  but  with  a  present  intention  of 
making  it  his  permanent  home,  unless  and  until  something  (which  is 
unexpected  or  uncertain)  shall  occur  to  induce  him  to  adopt  some  other 
permanent  home."  Dicey,  Conflict  of  Laws  (American  Notes  by 
Moore)  p.  728. 

Mr.  Webster,  while  Secretary  of  State,  had  occasion  to  consider  the 
law  of  domicile,  and  expressed  his  views  on  the  subject  as  follows: 

"The  general  rule  of  the  public  law  is,  that  every  person  of  full  age 
has  a  right  to  change  his  domicile;  and  it  follows,  that  when  he  re- 
moves to  another  place,  with  an  intention  to  make  that  place  his  per- 
manent residence,  or  his  residence  for  an  indefinite  period,  it  becomes 
instantly  his  place  of  domicile ;  and  this  is  so,  notwithstanding  he  may 
entertain  a  floating  intention  of  returning  to  his  original  residence  or 
citizenship  at  some  future  period.  *  *  *  jj^  questions  on  this  sub- 
ject, the  chief  point  to  be  considered  is  the  animus  manendi,  or  inten- 
tion of  continued  residence ;  and  this  must  be  decided  by  reasonable 
rules  and  the  general  principles  of  evidence.  If  it  sufficiently  appear 
that  the  intention  of  removing  was  to  make  a  permanent  settlement,  or 
a  settlement  for  an  indefinite  time,  the  right  of  domicile  is  acquired  by 
a  residence  even  of  a  few  days."  Thrasher's  Case,  Moore,  Interna- 
tional Law  Digest,  vol.  3,  p.  818. 

The  feature  here  prominently  brought  out,  that  domicile  wilLnot  be 
defeated  by  a  mere  "floating  intention"  to  remove  from  the  locality  at 


Ch.  5)  DOMICILE.  203 

som^  future  date,  has  been^adopteibjL Amen  courts  in  recent-years,. 
Gilman  v.  Gilman,  52"  Me.  165,  83  Am.  Dec.  503. 

In  view  of  the  foregoing  \ve_ffifd. -warranted  in  stating  that_  u.nder 
American  law  a  person's  domicile  is  that  place  which  he  has  freely  cho- 
sen for  Ills  abode  _arid  from  which  he  has  no  present  intention  of^e- 
moving. 

3.  It  now  becomes  necessary  to  ascertain  if  there  be  any  reason 
why  the  foregoing  principles  may  not  be  applied  to  American  citizens 
residing  in  a  country  with  which  the  United  States  has  a  treaty  of  ex- 
traterritoriality. This  leads  to  an  investigation  of  the  real  meaning 
of  extraterritoriality.  It  is  well-nigh  impossible  to  give  an  exact  defi- 
nition of  the  term,  yet  its  practical  application  is  not  difficult  of  com- 
prehension. Broadly^sp^aking,  extraterritoriality  is  a  t^rm  used^to  dcz 
scribe  the  act  by  which  a  state  extends  its"Jur i sdictlon  beyond  its  own 
boundaries  into  the  territory  of  another  state,  and  exercises  the  same 
over  its  nationals  who,  for  the  time  being,  may  be  sojourning  in  the 
terfttOT}'-  of  the  other  state.  It  is  usually  based  upon  treaty,  but  the 
rights  and  privileges  arising  therefrom  are  frequently  amplified  by 
usage  and  sufference.  Extraterritoriality_is_puLirL-operation  mainly  by 
Western  states  in  oriental  countries  where  it  signifies  principally  the 
exemption  of  the  nationals  of  said  Western  states  from  local  jurisdic- 
tion, and  a  corresponding  exercise  of  jurisdiction  over  them  by  their 
own  national  authorities. 

For  the  purpose  of  ascertaining  the  practical  operation  of  the  law 
of  extraterritoriality,  we  shall  now  trace  in  brief  outline  the  history  of 
its  application  in  China  by  two  prominent  Western  nations,  the  United 
States  and  Great  Britain,  under  their  treaties  of  extraterritoriality  with 
that  country.  It  will  be  observed  that  the  treaties  under  which  these 
two  nations  operate  in  China  are  substantially  the  same.  Great  Britain, 
however,  has  exercised  its  rights  and  privileges  under  the  treaties  and 
developed  its  law  of  extraterritoriality  in  China  to  a  far  greater  extent 
than  has  the  government  of  the  United  States. 

The  first  treaty  of  extraterritoriality  between  the  United  States  and 
China  was  entered  into  on  July  3,  1844,  and  a  second  treaty  was  con- 
cluded on  June  18,  1858.  Articles  XXV  and  XXVII,  respectively,  of 
said  treaties  provide :  "All  questions  in  regard  to  rights,  whether  of 
property  or  of  person,  arising  between"  atizens  of  the  United  States  in 
China,  shall  be  subject  to  the  jurisdiction  and  regulated  by  the  author- 
ities of  their  own  government." 

Congress  in  1848  and  in  1860  enacted  statutes  for  the  purpose  of  car- 
rying into  full  force  and  effect  the  provisions  of  these  treaties,  and  to 
that  end  extended  certain  laws  to  China  and  created  consular  courts, 
vesting  them  with  authority  to  apply  and  execute  said  laws.  The  body 
of  laws  which  Congress  has  extended  to  Americans  in  China  consists 
of  those  statutes  of  the  United  States  suitable  to  carry  the  treaties  into 
effect,  the  common  law,  including  the  law  of  equity  and  admiralty,  and 
certain  regulations  of  the  American  Minister  to  China  promulgated  to 


204  GENERAL  PROVISIONS.  (Part  1 

supply  the  deficiencies  in  these  laws.  Rev.  St.  U.  S.  §  4086  (U.  S. 
Comp.  St.  1901,  p.  2769). 

On  June  30,  1906,  Congress  passed  the  act  creating  this  court  and 
vested  it  substantially  with  the  jurisdiction  formerly  exercised  by  the 
consular  courts.  (For  a  complete  statement  of  the  history  of  the  Amer- 
ican law  of  extraterritoriality  in  China,  see  Hinckley,  American  Con- 
sular Jurisdiction  in  the  Orient). 

Great  Britain,  on  the  other  hand,  by  successive  foreign  jurisdiction 
acts  from  1843  to  1890,  by  numerous  orders  in  council,  by  regulations 
promulgated  by  the  British  Minister  at  Peking,  and  by  the  decisions  of 
the  British  Supreme  Court  at  Shanghai,  has  amply  provided  for  the 
protection  and  government  of  its  subjects  in  China,  and  has  probably 
carried  the  law  of  extraterritoriality  in  China  to  a  higher  degree  of  de- 
velopment than  any  other  foreign  power.  The  extent  to  which  Great 
Britain  has  exercised  its  power  under  the  treaties  will  appear  from  an 
examination  of  what  is  known  as  the  foreign  jurisdiction  act  of  1890, 
and  an  examination  of  the  jurisdiction  possessed  by  the  British  Su- 
preme Court  at  Shanghai.  Section  1  of  the  foreign  jurisdiction  act, 
provides : 

"It  is  and  shall  be  lawful  for  Her  Majesty  the  Queen  to  hold,  exer- 
cise and  enjoy  any  jurisdiction  which  Her  Majesty  now  has  or  may  at 
any  time  hereafter  have  within  a  foreign  country  in  the  same  and  as 
ample  a  manner  as  if  Her  Majesty  had  acquired  that  jurisdiction  by 
the  cession  or  conquest  of  territory." 

Section  3  of  the  act  provides : 

"Any  act  or  thing  done  in  pursuance  of  any  jurisdiction  of  Her  Maj- 
esty in  a  foreign  country  shall  be  as  valid  as  if  it  had  been  done  accord- 
ing to  the  local  law  then  in  force  in  that  country." 

And  paragraph  2  of  section  5  provides : 

"Thereupon  those  enactments  (described  in  the  first  schedule  of  this 
act)  shall,  to  the  extent  of  that  jurisdiction,  operate  as  if  that  country 
were  a  British  possession  and  as  if  Her  Majesty  in  Council  were  the 
Legislature  of  that  possession." 

53  and  54  Victoria,  chapter  37. 

The  British  Supreme  Court  in  Shanghai,  which  was  established  in 
1866,  is  vested  with  jurisdiction  to  execute  the  laws  which  Great  Brit- 
ain has  extended  to  its  subjects  in  China.  This  court  is  in  fact  a  Brit- 
ish court,  and  in  addition  to  ordinary  civil  jurisdiction,  exercises  juris- 
diction in  cases  involving  admiralty,  bankruptcy  and  lunacy,  and  in  ad- 
dition to  the  ordinary  criminal  jurisdiction,  it  exercises  jurisdiction  in 
some  special  statutory  offences  such  as  offences  against  the  patents  and 
trade-marks  acts.  Piggott,  Extraterritoriality,  p.  40.  To  such  an  extent 
has  the  British  jurisdiction  in  China  been  developed  that  there  is  almost 
no  legislative  or  judicial  phase  of  the  law  in  force  in  England  which, 
if  necessary  in  China,  has  not  its  counterpart  here.  On  the  other  hand, 
"common  law"  and  "equity"  form  the  vague  and  indefinite  description 
of  the  main  law  in  force  in  respect  to  Americans  in  China. 


Ch.  5)  DOMICILE.  205 

From  the  foregoing  it  will  be  seen  that  while  the  Emperor  of  China 
exercises  nominal  sovereignty  over  all  Chinese  territory  including  that 
occupied  by  the  nationals  of  the  United  States  and  Great  Britain,  yet 
the  jurisdiction  of  these  two  countries  over  their  own  citizens  who  re- 
side in  China  is,  for  all  practical  purposes,  as  full  and  complete  as  if 
China  were  in  fact  territory  belonging  to  these  nations. 

4.  We  come  now  to  the  consideration  of  the  main  question  in  this 
case,  namely,  whether  there  be  anything  in  the  practical  operation  of 
the  law  of  extraterritoriality  fatal  to  the  application  of  the  principles 
of  the  American  law  of  domicile  to  Americans  residing  in  China.  So 
far  as  we  are  able  to  ascertain,  this  question  has  not  been  passed  upon 
by  the  courts  of  the  United  States,  nor  has  it  been  made  the  subject  of 
discussion  by  the  executive  branch  of  the  government.  Il_has^how- 
ever,  received  the  careful  consideration  of  the  courts  of  last  resort  of 
Great  Britaia.wlth  the  unlooked  for  result  that  there  is  now  no  such 
thing  Tcnown  to  the  British  law  of  extraterritoriality  as  an  Anglo-Chi- 
nese domicile. 

The  leading  case  on  this  subject  originated  in  Shanghai,  and  is  known 
as  Tootal's  Trusts.  The  facts  in  this  case  were  as  follows:  After 
some  previous  changes  of  residence,  Tootal,  a  subject  of  Great  Britain, 
in  1863  came  to  reside  in  Shanghai,  and  with  the  exception  of  some 
short  visits  to  England  for  health  and  business,  he  continued  to  reside 
at  Shanghai  until  1878,  the  date  of  his  death.  It  was  admitted  that 
some  years  before  his  death  he  had  determined  to  reside  permanently 
at  Shanghai,  had  relinquished  all  intention  of  ever  returning  to  Eng- 
land and  had  expressed  this  intention  on  a  number  of  occasions.  In 
his  will  he  described  himself  as  a  resident  of  Shanghai  in  the  Empire 
of  China.  The  decision  of  the  court  was  written  by  Mr.  Justice  Chitty, 
who  held  that  British  subjects  in  Eastern  countries  in  all  cases  retain 
their  domicile  in  that  portion  of  the  British  Empire  in  which  they  were 
domiciled  previously  to  taking  up  their  abode  in  an  Eastern  state.  The 
decision  is  based  on  the  proposition  that  residence  in  a  "territory"  is  ^  .  ,  ^^ 
an  essential  part  of  the  legal  idea  of  domicile,  and  holds  that  "there  is  ^  ^  ^Q^  CA*"^ 
,  no  authority  that  an  individual  can  become  domiciled  as  a  member  of 
a  community  which  is  not  a  community  possessing  the  supreme  or  sovr 
ereign  territorial  power."    Re  Tootal's  Trusts,  L.  R.  23  C.  D.  532. 

The  doctrine  thus  laid  down  was  followed  by  the  court  in  the  case  of 
Abd-ul-Messih  v.  Farra,  13  App.  Cas.  431.  The  decision  in  this  case 
was  written  by  Lord  Watson.  "Their  Lordships,"  he  says,  "are  sat- 
isfied that  there  is  neither  principle  nor  authority  for  holding  that  there 
is  such  a  thing  as  domicile  arising  from  society  and  not  from  connec- 
tion with  a  locality.  In  re  Tootal's  Trusts  is  an  authority  strictly  in 
point,  and  their  Lordships  entirely  concur  in  the  reasons  by  which  Mr. 
Justice  Chitty  supported  his  decision  in  that  case."  See,  also,  Maltass 
v.  Maltass,  1  Rob.  Ecc.  80,  and  The  Indian  Chief,  3  Rob.  Adm.  29. 

While  these  decisions  fix  the  law  of  Great  Britain  on  this  subject  for 
the  present,  the  doctrine  here  laid  down  has  not  commended  itself  to 


206  GENERAL  PROVISIONS.  (Part  1 

the  judg-ment  of  the  leading  British  commentators  on  the  subject  of  ex- 
traterritoriahty.  Sir  Francis  Piggott,  Chief  Justice  of  Hongkong,  in 
a  work  which  has  just  come  from  the  press,  expresses  the  opinion  "that 
when  the  question  is  again  raised  it  will  be  found  that  the  principles 
established  by  the  most  recent  cases  necessitate  a  reconsideration  of  the 
law  laid  down  on  the  subject  by  Mr,  Justice  Chitty."  The  learned  jus- 
tice then  enters  upon  an  exhaustive  examination  of  the  principle  upon 
which  the  foregoing  decisions  are  based,  and  discusses  the  same  in  the 
followihg  manner: 

"At  the  time  when  many  of  the  definitions  were  framed,  the  law  ap- 
plicable to  extraterritoriality  was  little  known,  and  in  some  cases  was 
not  present  in  the  minds  of  the  judges  who  framed  them.  'Locality',  and 
'territory'  were  obviously  the  terms  which  would  be  used ;  the  commu- 
nity among  which  a  person  settled  being  as  obviously  identified  with 
the  locality.  But  it  attached  undue  importance  to  the  word  to  insist 
that  because  'locality'  is  used  in  the  definitions  in  cases  where  there 
could  be  no  questions  as  to  its  fitness,  therefore  it  excluded  the  idea  of 
'relationship  to  a  community'  in  the  first  case  that  came  up  for, argu- 
ment, in  which  the  point  was  whether  'relationship  to  a  community'  is 
or  is  not  involved  in  domicile.  *  *  *  The  communit)'  referred  to 
is  of  course  the  community  which  inhabits  a  country,  or  a  definite  local- 
ity; in  other  words,  a  community  which  has  laws  and  customs  of  its 
own,  which  the  government  of  the  locality  imposes  on  all  members  of 
it;  but  the  question  is  whether  the  reason  of  the  rule,  the  whole  prin- 
ciple on  which  it  is  based,  do  not  render  it  as  applicable  to  an  extrater- 
ritorial community  as  to  a  territorial  one.  On  the  hypothesis  the  cir- 
cumstances may  be  the  same  in  the  one  as  in  the  other.  A  man  may 
set  up  his  home  in  a  treaty  port,  he  may  have  banished  forever  the  idea 
of  returning  to  his  native  country;  the  animus  manendi  may  be  clear, 
without  shadow  of  doubt.  On  the  hypothesis,  too,  there  is  a  body  of 
law  regulating  the  community.  Why  is  it  impossible,  then,  for  the  or- 
dinary principles  of  the  law  to  be  applied,  and  for  the  personal  rela- 
tions of  the  permanent  members  of  the  community  to  come  under  that 
law  permanently  as  the  law  of  the  domicile  of  their  choice;  of  those 
who  are  born  members  of  the  community  as  the  law  of  the  domicile  of 
their  origin?  *  *  *  Linking  these  two  propositions  together,  it  is 
suggested  that  the  inevitable  result  is  a  modification  of  Lord  Watson's 
interpretation  of  the  law  of  domicile  referred  to  above  on  the  following 
lines:  The  law  which  regulates  a  man's  personal  status  must  be  that 
of  the  governing  power  in  whose  dominions  his  intention  is  permanent- 
ly to  reside,  or  must  be  so  recognized  and  established  by  that  governing 
power  as  to  be  in  fact  the  law  of  the  land."  Piggott,  Extraterritorial- 
ity, pp.  228,  230,  232,  233. 

The  subject  has  also  been  carefully  gone  into  by  Hall,  the  celebrated 
authority  on  International  Law,  in  his  work  on  the  Foreign  Jurisdic- 
tion of  the  British  Crown.    He  also  takes  issue  with  the  court  in  the 


Ch.  5)  DOMICILE.  207 

Tootal's  Trusts  Case,  and  expresses  his  views  on  the  subject  as  fol- 
lows : 

"It  is  perhaps  to  be  regretted  that  a  change  in  the  law  is  not  made 
which  a  short  order  in  council  could  easily  effect.  Anglo-Oriental  dom- 
icile has  its  reasonable,  it  may  also  be  said,  its  natural,  place.  Conflicts 
between  the  differing  laws  of  England,  of  Scotland,  of  the  various 
self-governing  colonies,  are  inevitable  within  British  jurisdiction  in  the 
East ;  but  it  is  unnecessary  to  multiply  the  points  of  collision.  So  long 
as  persons  have  not  identified  themselves  with  the  life  of  a  new  com- 
munity, they  must  keep  each  his  own  law;  but  as  soon  as  they  have 
shown  their  wish  and  intention  to  cut  themselves  adrift  from  the  asso- 
ciation of  birth,  they  prove  their  indifference  to  the  personal  law  at- 
tendant on  their  domicile  of  origin.  There  is,  therefore,  no  reason  why 
simplicity  and  unity  of  law  should  not  be  gained  for  British  subjects  by 
attributing  community  in  the  laws  of  England  to  all  of  European  blood. 
There  is  also  every  reason  for  avoiding  very  grave  difffculties  of  an- 
other kind,  which  are  opened  through  invariable  preservation  of  the 
domicile  of  origin.  English  families,  even  in  the  present  day,  often  re- 
main through  more  than  one  generation  in  Oriental  countries  as  their 
permanent  place  of  abode.  Formerly  the  history  of  persons  whose 
domicile  might  become  a  matter  of  importance  was  generally  known 
sufficiently  well.  Many  are  now  of  obscure  antecedents  and  of  an  origin 
uncertain  among  the  numerous  places  from  which  British  subjects  can 
derive.  As  no  domicile  can  be  acquired  in  an  Anglo-Oriental  commu- 
nity, it  becomes  every  year  more  probable  that  cases  will  occur  in  which 
the  determination  of  the  domicile  of  a  father,  perhaps  of  a  grandfather, 
mav  become  necessary,  and  in  which  it  may  be  equally  impracticable  to 
impute  an  English  domicile  or  to  attribute  any  other  with  fair  probabil- 
itv.  It  would  be  a  great  advantage  that  in  such  cases  there  should  be 
a  fixed  rule  which  should  correspond  with  the  obvious  facts,  and  that 
the  courts,"  instead  of  searching  with  infinite  trouble  and  expense  for 
an  ancestral  domicile  should  be  enabled  to  find  that  a  domicile  had  been 
acquired  in  the  Eastern  country  which  carried  with  it  the  application 
of  English  law ;-  thatjjn_other  words,  residence  in  China  under  English. 
law7^yitlfthe  animus_iiianendi»-sli^ul4  i^nply^omicile  in  China  under  th 
condition__ol  the  applicabilitj_jpf  the  special  law  of  the  English  commiir 
nitv  established__there,.^s_that  law  is  defined  by  order  in  council.  The- 
oretically the  conception  of  such  a  domicile  is  unobjectionable  if  once 
the  mind  is  cleared  of  the  notion,  at  present  dominant,  that  domicile  is 
the  creature  of  place  and  intention  alone.  In  Europe  it  is  so,  because 
residence  in  a  place  implies  subjection  to  the  common  territorial  law, 
and  to  no  other ;  in  the  East  it  is  not  necessarily  so,  because  residence 
there  implies  subjection  to  the  law  of  one  or  other  of  several  dift'erent 
communities,  the  personal  laws  of  which  receive  equal  recognition  from 
the  territorial  sovereign  power.  Association  with  place  is  necessary  to 
domicile ;  but  it  is  not  always  the  sole  determinant  factor.  In  any  case, 
even  if  the  conception  of  domicile  here  suggested  be  anomalous,  the 


208  GENERAL  PROVISIONS.  (Part  1 

convenience  of  giving  effect  to  it  is  large  enough  to  excuse  a  certain 
sacrifice  of  logical  principle."  Hall,  Foreign  Jurisdiction  of  the  Brit- 
ish Crown,  pp.  184-186. 

After  a  careful  consideration  of  the  principles  of  law  on  this  subject 
as  well  as  the  practical  demands  of  the  situation,  this  court  is  inclined 
to  give  greater  weight  to  the  foregoing  argument  of  Mr.  Hall  than  to 
the  line  of  reasoning  adopted  by  Mr.  Justice  Chitty  in  the  Tootal's 
Trusts  Case.  We  can  see  no  good  reason  for  holding  that  a  citizen  of 
the  United  States  cannot  be  domiciled  in  China.  Mr.  Justice  _Chitty^ 
decision  destroys  in  their  application  to  China  all  the  definitions-_Q,f 
domicile  contained  in  the  books.  It  ignores  both  of  the^esisential. ele- 
ments of  residence  and  intention.  ThB~'BrttrsTi^"courts  were  correct 
when  they  stated  that  "there  w'as  no  authority  for  holding  that  an  indi- 
vidual could  not  become  domiciled  as  a  member  of  a  community  wliicli 
was  not  a  community  possessing  the  supreme  or  sovereign  territorial^ 
jgQ3aier.  This  fact,  however,  is  without  significance  when  it  is  noted 
that  the  courts  were  considering  the  first  case  of  this  character  which 
had  ever  been  presented  for  judicial  determination.  At  the  time  the 
Tootal's  Trusts  Case  came  up  for  consideration,  the  British  law  of  ex- 
traterritoriality was  not  so  well  developed  as  it  is  now,  and  the  subse- 
quent trend  of  events  has  given  it  a  different  meaning  from  what  it  had 
at  the  time  the  decision  was  rendered.  It  was  quite  natural  for  the 
courts  thirty  years  ago  to  announce  that  the  immiscible  character  of 
the  two  races  and  the  radical  difference  between  the  religions,  customs, 
habits  and  laws  of  peoples  of  the  two  countries  raised  a  strong  presump- 
tion against  a  British  subject  becoming  domiciled  in  China.  At. that 
time  it  was  doubtless  the  fixed  purpose  of  the  majority  of  those  who 
came  to  China  to  sojourn  here  only  a  few  years  and  then  to  return  to 
the  country  from  which  they  came.  This  is  not  the  case  at  present. 
Many  families  dwell  here  now  with  the  fixed  purpose  of  making  China 
their  permanent  home.  There  are  abundant  examples  of  families  per- 
manently located  here,  and  this  is  likely  to  become  more  common  in  the 
future.  In  view  of  this  fact,  the  number  of  heirs  and  distributees  of 
foreign  citizens  decedent  in  China  who  live  in  China  in  proportion  to 
those  who  dwell  in  the  countries  from  which  said  foreigners  came,  is 
rapidly  growing  larger,  thus  necessitating  the  adoption  of  a  rule  which 
will  meet  the  practical  demands  of  the  situation. 

From  the  standpoint  of  expediency,  Hall  has  very  clearly  pointed  out 
that  conflicts  between  the  laws  of  England,  Scotland  and  various  self- 
governing  colonies  are  inevitable  within  British  jurisdiction  in  the  East. 
This  proposition  is  too  clear  to  require  the  support  of  argument.  If 
this  court  should  adopt  the  rule  laid  down  by  the  British  courts,  such 
conflicts  would  be  perhaps  more  numerous  and  more  pronounced  in  the 
administration  of  American  law  in  China  than  in  administration  here 
of  the  law  of  Great  Britain.  The  adoption  of  such  a  rule  would  .put 
this  court  to  the  necessity  in  the  matter  of  probating  wills  of  ajpplying 
the  laws  of  forty-six  different  commonwealths,  to  say  nothing  of  the 


Ch.  5)  DOMICILE.  209 

laws^  of  our  territories  and  insular  possessions.  This  would  be  prac- 
tically impossible.  Furthermore,  the  adoption  of  the  British  rule  would 
require  this  court  not  only  to  hold  that  Dr.  Allen,  who  had  resided  in 
China  for  forty-seven  years  and  who  had  expressed  his  intention  of 
residing  here  permanently,  was  domiciled  in  Georgia,  but  also  to  hold 
that  his  children  and  grandchildren,  some  of  whom  have  never  been  in 
Georgia,  and  who  never  expect  to  reside  there,  are  nevertheless  dom- 
iciled in  that  state.  This  proposition  is  too  extravagant  to  be  main- 
tained. It  requires  a  greater  stretch  of  the  imagination  and  the  adop- 
tion of  a  greater  fiction  of  law  to  hold  that  a  person  can  be  domiciled 
in  a  country  where  he  does  not  reside  and  has  no  intention  of  residing 
at  any  future  time  than  to  hold  that  a  citizen  of  a  foreign  state  can  ac- 
quire an  extraterritorial  domicile  in  a  community  which  is  not  the  com- 
munity possessing  the  sovereign  territorial  power.  Every  considera- 
tion of  reason  and  convenience  demands  that  the  American  law  of  dom- 
icile be  applied  by  American  courts  in  China. 

We  hold  therefore : 

First :  That  there  is  nothing  in  the  theory  or  practical  operation  of 
the  law  of  extraterritoriahty  inconsistent  with  or  repugnant  to  the  ap- 
plication of  the  American  law  of  domicile  to  American  citizens  resid- 
ing in  countries  with  which  the  United  States  has  treaties  of  extrater- 
ritoriality. 

Second :  That  Dr.  Young  J.  Allen,  having  lived  in  China  for  a  pe- 
riod of  forty-seven  years  and  having  expressed  his  intention  to  live  here 
permanently,  thereby  acquired  an  extraterritorial  domicile  in  China; 
consequently  this  court^in  the  administration  of  his  estate  will  be  guid- 
ed by  the  law  which  Congress  has  extended  to  Americans  in  China. 
whicins"1iTC  common  law.^^ 

11  As  to  Aiiirlo-Inclian,  Anglo-Turkish,  and  like  domiciles,  see  Westlake,  Priv. 
Int.  Law,  309^322.  See,  also,  G.  H.  Huberich,  Domicile  in  Countries  Granting 
Extraterritorial  Privileges  to  Foreigners,  24  Law  Quar.  Rev.  440-448. 

For  law  governing  acts  in  uncivilized  countries,  see  Dicey,  Conflict  of  Laws. 
724-726. 

LOR.CONF.L.— 14 


JIO 


GENERAL  PROVISIONS. 


(Part  1 


SECTION  2.— DOMICILE  OF  MARRIED  WOMEN. 


TOWN  OF  WATERTOWN  v.  GREAVES. 

(Circuit  Court  of  Appeals,  First  Circuit,  1901.     112  Fed.  183,  50  C  C.  A.  172, 

56  L.  R.  A.  865.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Massachusetts. 

Brown,  District  Judge. ^-  This  writ  of  error  is  brought  to  review 
the  rulings  of  the  Circuit  Court  for  the  District  of  Massachusetts  in 
an  action  of  tort  for  the  recovery  of  damages  for  injuries  caused  by  a 
defective  sidewalk. 

The  first  question  to  be  considered  is  that  of  jurisdiction.  The 
plaintifif  below  sued  as  a  citizen  of  Rhode  Island.  It_is_contend£d_j[Qr 
the  town  that  upon  the , evidence  the  pjaintiff  belovy  was  not  ^xitizen 
of  Rhode  Isrand7  and  that  t he_xourt_erred, in  , the-_instructians-_ to  the 
jury  as  to  thg^fig^Tof  ajQiarried  womanj_deserted^ by  her  husband, 
to  establish  an  independent^domicile. 

That  the  plaintiff  below  went  to  Rhode  Island  before  the  date  of  the 
writ,  April  3,  1900,  with  the  intention  of  living  there  permanently, 
must  be  taken  as  a  fact  established  by  a  special  finding  of  the  jury.' 
Other  relevant  facts  are  that  the  plaintiff  _and  her_husband  resided 
top-etheratJ^.owe11,  Mass..  and  were  citizens  ofjdiat  state  until  some 
time  in  TsOg  or  JLB93j  when  her  husband  deserted  her,  ahdr"Kaa_neyer 
since  TTveH^in  Lowell  or  contribuleg^  to  b£x,.support ;  that  she  has  not 
seen  or  heardfrom  him  siDce,-aftd-tliat  at  the  date  _of_t  rial  she^dTd^noF 
know  whether  he  was  alive  or  dead ;  that  she  never  had  procured  a 
divorce,  and,  so^faj^-as  she  k«ewT4i£iLiuisbanj_hadjiever  made  applica- 
tion  f2r_a_dixorcej  The  record  contains  no  evidence  of  the  circum- 
stances under  which  the  husband  of  the  plaintiff  below  deserted  her; 
but,  inasmuch  as  it  is  the  ordinary  duty  of  the  husband  to  abide  with 
the  family,  there  is,  in  the  present  case,  a  sufficient  presumption  that 
the  wife  was  guilty  of  no  fault,  in  the  absence  of  any  suggestion  to 
the  contrary  based  on  the  evidence.  The  evidence  was  int^nfFieipnf  \n 
establish  a  presumption  of  death.  Neither  was_there_jLnyijvidence_thar 
the  husband  had JLeit-the_ state  of_Massachusetts.  or  hnd  rhang-pd  the 
citizenship  which  he  hgrl  at  thpdate~oT]gesertion.  It  appeared  that  the 
plaintiff  was  obliged  to  support  herself  by  her  own  exertions. 

The  third  assignment  of  error  is  as  follows:  "The  court  erred  in 
instructing  the  jury  that,  while  the  general  rule  of  law  is  that  the 
domicile  and  citizenship  of  a  wife  follow  that  of  her  husband,  still, 
if  a  husband  deserts  his  wife,  as  there  is  evidence  tending  to  show  was 


12A  part  of  the  opinion  relating  to  questions  otlier  than  domicile  has  been 
omitted. 


Ch.    5)  DOMICILE.  211 

the  fact  in  this  case,  the  wife's  domicile  would  not  necessarily  follow, 
that  of  her  husband ;  that  plaintiff  might  acquire  a  domicile  and  citizen- 
ship in  Rhode  Island,  independent  of  that  of  her  husband,  if  he  were 
living;  that  if  the  husband  deserted  his  wife  and  abandoned  his  resi- 
dence, and  went  to  parts  unknown,  and  there  remained  for  years  with- 
out having  any  communication  with  his  wife,  and  without  making  any 
contribution  to  her  support,  the  wife  had  the  right  to  acquire  a  domicile 
and  citizenship,  if  she  choose  so  to  do,  in  a  place  different  from  that  of 
the  domicile  and  citizenship  of  her  husband  at  the  time  he  deserted 
her,  or  from  the  place  of  the  domicile  or  citizenship  of  the  husband 
after  such  desertion." 

It  is  well  settled  that  each  state  has  the  right  to  determine  the 
civil  status~and  Rapacities  of  its  inhabitants.  Pennoyer  v.  Neff,  95  U. 
S.  714,  722724'L.  Ed.  565;  Hekking  v.  Pfaff  (C.  C.)  82  Fed.  403. 

An  examination  cif^  the  de£is.ions  of  the  Supreme  Court  of  Rhode 
Island  lipon  the~question  of  thejjght  of  a  deserted  wife  to  esta1)lish 
for  herselfan  independent  domicile  satisfies  us  that  there  was  no  error 
in  the  instructiotis_ahQve  set  forth. 

In  DifsoiTv.  Ditson,  4  R.  I.  87  (a  leading  case  in  this  country;  see 
Atherton  v.  Atherton,  181  U.  S.  166,  21  Sup.  Ct.  544,  45  L.  Ed.'  794), 
Chief  Justice  Ames  said,  on  page  107 :  "Althou_gli,__a5  a  generaldoc- 
trine,  the  domicile  of  the  husband  is,  Jpy^law^  that  of  the  wife,  yet 
when  hp^j^rm^vmtc^auj^Wen^p^  nr  k  guilty  of  such  dereliction  of  duty  in_ 
the  rpl?jWi__g^  pnf-iflon  V|nr  tr,  }r\ny^p  if  pi'tlipf  partially  or  totally  dis- 
solved, she_jiDt  QiihLiiiajs:,  but  must,_tOLavoid  condonation,  establish  a 
sepai^ate  domicile  of  her  own.  This  she  may  establish — nay,  when  de- 
serted  or  compelled  to  leave  her  husband,  necessity  frequently  compels 
her  to  establish — in  a  different  judicial  or  state  jurisdiction  than  that 
of  her  husband,  according  to  the  residence  of  her  family  or  friends. 
Under  such  circumstances_she_gains,  and  is  entitled  to  gain,  for  the 
purposes  of  jurisdiction,  a  doniicile  of  her  own^'ancIT'especially  if  "a 
native  of_Jhe  statjS.  to  wllicTi  she  flies~Tor  retuge,  is,  upon  familiar 
principles,  readily  redintegrated  Jn  her  old  domicile." 

The  court  says  also :  "Whatever  wasTEe  former  domicile  of  the 
petitioner,  we  are  satisfied  that  she  is,  and  has,  for  upwards  of  the 
last  three  years,  been  a  domiciled  citizen  of  Rhode  Island,  her  only 
home,  in  the  house  of  her  father;  and  that  as  such  citizen,  and  upon 
such  notice,  we  have  power  and  jurisdiction  over  her  case,  and  to, 
change  her  condition  from  that  of  a  married  to  that  of  a  single 
woman,  granting  to  her  the  relief  which,  under  like  circumstances,  the 
law  and  policy  of  Rhode  Island  accords  to  all  its  citizens." 

From  this  decision  it  would  appear  to  be  the  law  of  Rhode  Island 
that  a  married  woman,  unlawfully  deserted  by  her  husband,  may 
establish  an  independent  domicile,  and  thus  become  a  citizen  of  the 
state  of  Rhode  Island. 

It  is  contended  that  this  decision  is  merely  to  the  effect  that  she 
may  establish  a  domicile  for  the  purposes  of  divorce.     We  regard  it, 


212  GENERAL  PROVISIONS.  (Part  1 

however,  as  a  clear  and  learned  statement  of  limitations,  upon  the 
general  rule  that  the  domicile  of  the  husband  is  that  of  the  wife. 

The  learned  Chief  Justice,  after  stating  the  general  doctrine,  pro- 
ceeds :  "A  more  proper  case  for  the  application  in  favor  of  a  peti- 
tioner for  divorce  of  the  foregoing  principles  relating  to  the  jurisdic- 
tion of  the  court  over  her  case,  and  to  the  question  of  her  domicile  in. 
this  state,  can  hardly  be  imagined." 

From  this  decision,  it  is  apparent  that  the  court  did  not  consider 
a  judicial  decree  essential  as  a  condition  precedent  to  the  establish- 
ment of  citizenship,  since  it  is  in  express  terms  stated  that  the  peti- 
tioner, for  upwards  of  three  years,  had  been  a  domiciled  citizen  of 
Rhode  Island. 

For  the  town  rtj"  ^'^n^ended  that  the  rightof__a_niarried  woqian  is 
limited  to  a  quasi  domicile  for  the  purposes  of  divorce,  and  th^  this 
decision  goes  no^rtliur.^^Buirthequestioh  of  citizenship  was  directly 
passed  upon7a?nt^itizenship  was  held  to  exist  upon  a  state  of  facts 
showing  unjustifiable  desertion. 

Moreover,  the  case  of  Rowland  v.  Granger,  22  R.  I.  2,  45  Atl. 
740,  contains  a  statement  by  the  Supreme  Court  of  Rhode  Island 
which  Seems  to  us  satisfactory  evidence  that  the  domicile  which  the 
wife  may  acquire  upon  desertion  is  not  merely  a  quasi  domicile  for 
the  purposes  of  divorce,  leaving  her  general  rights  as  a  citizen  of  the 
state  in  abeyance  until  the  pronouncement  of  a  decree  of  divorce,  a 
vinculo  or  a  mensa  et  thoro,  but  a  full  and  independent  domicile  for 
all  purposes.  This  case  was  an  action  brought  by  a  married  woman 
to  recover  the  amount  of  a  personal  property  tax  paid  under  protest. 
The  husband,  on  the  day  of  the  assessment,  was  a  domiciled  inhabitant 
of  the  state  of  Rhode  Island.  The  wife  was  at  that  time  living  in 
Asheville,  N.  C,  for  her  health,  with  the  intention  of  making  said 
place  her  permanent  home,  and  contended  that  she  was  a  citizen  of 
North  Carolina,  and  therefore  not  liable  to  a  personal  tax  in  Rhode 
Island.  There  was  no  abandonment.  The  persons  were  living  apart, 
but  the  unity  of  the  marriage  relation  existed  undisturbed.  No  ques- 
tion of  divorce  was  involved.  The  court  said:  "After  a  careful  ex- 
amination of  the  authorities,  however,  we  have  come  to  the  conclusion 
that  though  a  wife  may  acquire  a  domicile  distinct  from  that  of  her 
husband  whenever  it  is  necessary  or  proper  for  her  to  do  so,  as,  for 
instance,  where  the  husband  and  wife  are  living  apart  by  mutual  con- 
sent (In  re  Florance,  54  Hun,  328,  7  N.  Y.  Supp.  578) ;  or  where  the 
wife  has  been  abandoned  by  the  husband  (Shute  v.  Sargent,  67  N. 
H.  305,  36  Atl.  282);  or  for  purposes  of  divorce  (Ditson  v.  Ditson,  4 
R.  I.  87) ;  or,  in  short,  whenever  the  wife  has  adversary  interests  to 
those  of  her  husband — shej^aiTjiotaCTuire  such  a  domicile  sojonp^as 
the  unity  of  the  marriagej-cljjion  continues^jiotwitlistaading  that  from 
considerations  of  JieaItlTj_as.in  _the  present  case,  or  of  expediency,  one 
of  the  parties,  with  the  consent  of  the  other,  is  actually  living  in  a 


Ch.   5)  DOMICILE.  213 

di ff cren^place  frotTLthe^ther."     See,  also,  White  v.  White,  18  R. 
I.  202,  27  Atl.  506.  ^      " 

The  defendant,  now  plaintiff  in  error,  contends  that  "the  proposi- 
tion that  the  exception  made  in  divorce  cases  to  the  common-law 
rule,  as  to  the  domicile  of  the  wife  following  that  of  the  husband, 
does  not  extend  to  proceedings  other  than  a  suit  for  divorce,  was  ex- 
pressly declared  by  the  Supreme  Court  in  Barber  v.  Barber,  21  How. 
582,  16  L.  Ed.  226." 

We  do  not  so  read  this  opinion.  The  point  there  involved  was 
whether  a  woman  who  had  been  divorced  a  mensa  et  thoro  might 
establish  an  independent  domicile.  It  was  decided  that  she  could. 
It  was  neither  decided  nor  intimated  in  the  opinion  that  an  independent 
domicile  could  not  be  established  without  a  judicial  decree.  The 
court  seems,  however,  to  have  recognized  the  following  principles : 

The  rule  that  the  domicile  of  the  wife  is  that  of  the  husband  is 
probably  found  to  rest  upon  the  legal  duty  of  the  wife  to  follow  and 
dwell  with  the  husband  wherever  he  goes. 

That,  upon  the  commission  of  an  offense  which  entitles  her  to  have 
the  marriage  dissolved,  she  is  discharged  thereby  immediately,  and 
without  a  judicial  determination  of  the  question,  from  her  duty  to 
follow  and  dwell  with  him. 

That  if  the  husband  abandons  their  domicile  and  his  wife,  and  re- 
linquishes altogether  his  marital  control  and  protection,  he  yields  up 
that  power  and  authority  over  her  which  alone  make  his  domicile 
hers. 

Upon  page  591,  21  How.,  and  page  230,  16  L.  Ed.,  of  the  opinion, 
in  a  quotation  from  Bishop,  appears  this  language :  "Courts,  however, 
may  decline  to  recognize  such  domicile  in  a  collateral  proceeding ;  that 
is,  a  proceeding  other  than  a  suit  for  divorce." 

Itmaybe^  considered,  in  some  jurisdictions^jhatthe  appropriate 
proceedmgfo^r  jestablish^jng_thejw:r'^^''g'^  -^ylii'di-^HM^a^-^^-^ife  tn-^a^^ 
independent  domidle  is  a  proceeding  for  divorce  a  vinciilQ_or  a  mensa 
et  thoro,  aaxLthat,  in  consequence  of  the  difficulties  of  establishing 
these  wrongs  in  a  collateral  inquirv.  the  courts  should  require  an 
ad j udication  bv  a  divnrrp  rnnrf-  wlnVh  determines  finally  and  for  .all 
purpose^  the  status  of  the  wife.  See  Minor,  Conf.  Laws,  §  47.  But 
this  is  rather  a  rule  of  procedure  or  of  evidence  than  a  rule  of  right 
and  IS  anaTogous'ToIHe  rule  of  equity  tha^  creditor  shall  establish  his 
rigl^t^y'ajitdgment  of  law^^  before  attacking^  in  equitv  a  fraudulent 
conveyance. 

^Tierejeems  to  be  no  conflict  of  authority  as  to  the  point  that,  by     ,  , 

the  delictum  of-thg^sband,  the  wife  is  immediately  absolve"g~Tr5rirTier     I     fl^^ 

duty  to  followjind  dwell  with  him,  and  that  ^he  is  i-hpreaftgr  entitled. 
as  a  matter  of  right,  to  choose  her  own  dornicije. 

We  are~ol  the  o^iiTon  that  the  question  whether,  in  order  to  assert 
or  establish  this  right  in  a  collateral  proceeding,  she  must  first  procure 


;      } 


# 


y  ■ 


214  GENERAL  PROVISIONS.  (Part  1 

a  judicial  decree  establishing  her  ptatns,  asag-ainst;  her  husband  and 
all  iHeworld,  is  a  distinct  question. 

iTa  plea  iii~aBafement  had  raised  the  question  of  the  wife's  domi- 
cile, and,  before  a  hearing  on  the  plea,  she  had  applied  to  the  divorce 
courts  of  Rhode  Island  and  procured  a  decree  of  divorce,  that  decree, 
so  far  as  the  question  of  citizenship  was  concerned,  would  give  her 
no  new  rights,  but  would  furnish  her  with  judicial  evidence  that  before 
the  bringing  of  her  action  she  was  a  citizen  of  Rhode  Island. 

The  rulings  of  the  circuit  court  as  to  the  legal  rights  of  a  deserted 
wife,  in  the  case  at  bar,  were  in  accordance  with  the  law  as  stated  in 
Cheever  v.  Wilson,  9  Wall.  108,  134,  19  L.  Ed.  604,  609 :  "The  rule 
is  that  she  may  acquire  a  separate  domicile  whenever  it  is  necessary 
or  proper  that  she  should  do  so.  The  right  springs  from  the  neces- 
sity for  its  exercise,  ^nd  endures  as  long  as  the  necessity  continues. 
The  proceeding  for  a  divorce  may  be  instituted  where  the  wife  has  her 
domicile." 

This  implies  that  the  domicile  may  be  acquired  prior  to  and  inde- 
pendently of  proceedings  for  divorce.     And  this  implication  is  in  agree- 
^  ment  with  the  express, decision  of  the  Rhode  Island  court. 

Moreover,  various  expressions  of  the  Supreme  Court  seem  to  recog- 
nize that,  if  the  wife  is  living  apart  by  the  fault  of  the  husband,  the 
rule  that  his  domicile  is  her  domicile  is  inapplicable.     Thus,  in  Ather- 
ton  V.  Atherton,  181  U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794.  are  re- 
peated the  expressions  of  the  court  in  Cheely  v.  Clayton,  110  U.  S. 
01,  705,  709,  4  Sup.  Ct.  328,  330,  28  L.  Ed.  298,  299-     "If  a  wifel 
is  living  apart  from  her  husband  without  sufficient  cause,  his  domicile 
is  in  law  her  domicile,"  and  "it  is  hard  to  see  how,  if  she  unjustifiably 
refused  to  live  with  her  husband,     *     *     *     she  could  lawfully  acquire^ 
in  his  lifetime  a  separate  domicile  in  another  state,"  etc. 
A^       The  question  whether  the  wife,  in  order  to  bring  suit  as  a  citizen 
of  another  state  from  that  in  which  her  husband  is  domiciled,  must 


a  proper  tribunal  in  a  direct  proceeding  for  that  purpose,  is  one  that 


establish  her  right  to  acquire  a  separate  domicile  .by  the  judgment  of 


jh      v^ '       '  •  presents  aimcuities. 

"    ,  j^    Xr  It  mayJbe-saM-tlint,  there  are  practical  diffirulties  in  trying  collateratiy 

^  the  relations_of  husband  and  wife,  and  in  determining  whethi^r_£Lr  not 

N  the  hus'Bandhas  been  guilty  of  sucli^;^  delirturn  ^<=.  jiLstifies  a  separate 

^  domicile.     But  similar  difficulties   do  not  preclude  a  husband   from 

asserting,  in  defense  of  an  action  for  supplies  furnished  to  a  wife,  the 
adultery  or  other  misconduct  of  the  wife.  Such  cases  involve  a  col- 
lateral inquiry  into  the  rights  of  husband  and  wife  arising  from  a 
breach  of  the  obligations  of  marriage,  yet  it  has  never  been  held  that 
the  husband  must  establish  the  fact  of  the  wife's  delictum  in  a  direct 
proceeding  for  that  purpose.  Gill  v.  Read,  5  R.  I.  343,  73  Am. 
Dec.  73. 

The  wife  may  not  desire  a  divorce  a  vinculo  or  a  mensa  et  thoro ; 
she  may  be  ready  to  condone  the  fault  of  the  husband  in  case  he  shall 


Ch.    5)  DOMICILE.  215 

return;  she  may  desire,  for  her  own  sake  or  that  of  her  family,  to 
avoid  publicity ;  or  she  may  die  before  she  has  established  her  rights 
by  a  judicial  decree. 

The  difficulties  that  might  arise  from  adoptirip^a^rigid  rule  that  the 
wife's  c[onTicile~sIiaIl:Jje  pre^uuiifitTo  be  HeFliusband's  until  she  over- 
comes  this  presumption  by  a  iudicialdecree  seem  more  serious  than 
those  that  wouTd~¥nse  from"  trying  THe~question_pf  domestic  relations 
collaterally^""  ' 

We  should  hesitate  long  before  deciding  that  the  only  exception  to  ' 
the  rule  that  the  domicile  of  the  wife  follows  that  of  her  husband  is 
in  judicial  proceedings  whose  express  object  is  to  show  that  the  rela- 
tion  itself  ought  to  be   dissolved  or  modified,  since  there   is  grave  / 
danger  that  serious  injustice  might  arise.     See  Le  Sueur  v.  Le  Sueur,  ] 
1  Prob.  Div.  139-142 ;  Eversley,  Dom.  Rel.  (1896)  p.  167. 

2  Bish.  Mar.  &  Div.  §§  111,  115,  upon  which  counsel  for  the  town 
relies,  seems  to  recognize  that  the  rule  should  not  always  prevail  in 
non-divorce  cases. 

Furthermore,  upon  principle,  it  is  difficult  to  see  why  a  wife  who 
is  completely  abandoned  by  her  husband,  even  in  consequence  of  her 
own  fault,  should  be  precluded  from  establishing  an  independent  domi- 
cile. If  the  husband,  justifiably  or  unjustifiably,  renders  it  impossible 
for  her  to  dwell  with  him,  and  voluntarily  relinquishes  altogether  his 
marital  control  and  protection,  so  that  the  abandonment  is  a  com- 
pleted fact,  it  cannot  be  said,  in  strictness,  that  her  dwelling  apart  from 
him  is  her  continuous  fault.  Her  original  fault  may  have  justified  the 
abandonment,  but  his  renunciation  of  his  former  obligations  keeps 
her  from  his  home,  and  if  she  must  find  for  herself  another  home, 
and  from  necessity  or  convenience  goes  to  another  stateTTTis  dimcuTt 
to  see  whv  she  shoidd  be  precluded  from  thg  nrrnriary_ng-hts  of  a 
citizen  of  thaTstate.  The  expressions  of  the  supreme  court  in  Ather- 
ton  V.  Atherton,  181  U.  S.  155,  21  Sup.  Ct.  541,  45  L.  Ed.  794,  which 
relate  to  a  wife  living  apart  without  sufficient  cause,  or  through  an 
unjustifiable  refusal  to  live  with  the  husband,  do  not  cover  a  case  in 
which  the  living  apart  is  caused  by  the  husband's  total  abandonment 
of  the  wife. 

In  the  present  case,  however,  we  are  relieved  from  a  consideration 
of  this  question  by  the  presumption  that  the  wife  was  guilty  of  no 
fault  which  justified  either  the  original  desertion  or  its  long  continu- 
ance. 

We  are  of  opinion  especially  that  in  the  present  case,  and  upon  the 
present  assignments  of  error,  the  defendant  is  not  entitled  to  make  the 
objection  that  the  proper  evidence  of  the  right  of  the  wife  to  an 
independent  domicile  is  a  judicial  decree. 

No  objection  was  made  to  the  introduction  of  evidence  of  facts 
upon  which,  according  to  the  general  law  as  well  as  the  law  of  Rhode 
Island,  the  wife  became  entitled,  as  a  matter  of  legal  right,  to  establish 
an  indepeiKlent  domicile. 


216  GENERAL  PROVISIONS.  (Part  1 

The  defendant  below  was  content  to  rely  upon  the  proposition  that 
upon  all  the  evidence  the  plaintiff  was  not  a  citizen  of  Rhode  Island. 
No  objection  was  made  to  trying  the  question  of  the  relations  of  hus- 
band and  wife  collaterally.  The  obj ection  that  sheJiad^QOt  establlshfd 
her  rights  by  a  judiciai-deeree-/  and"  that  the- defendant  should  not  be 
compelled  to  try  the  question  of  the^jxlations_^of_Jiusb3nd  "and'-wTfe 
in  this  action,  was  n(5t  made^  and  must  be  held  to  have  been 
waived.    *     *     * 


le  judgment  of  the  Circuit  Court  is  affirmed,  with  interest  and 
with  costs.^* 


SECTION  3.— DOMICILE  OF  MINORS. 


LAMAR  V.  MICOU. 

(Supreme  Court  of  the  United  States,  18S4.     112  U.  S.  452,  5  Sup.  C?t.  221,  28 

L.  Ed.  751.) 

See  post,  p.  716,  for  a  report  of  the  case.^* 

13  See  Gordon  v.  Yost  (C.  C.)  140  Fed.  79  (1905);  McKnight  v.  Dudley, 
148  Fed.  204,  78  C.  C.  A.  162  (1906). 

"It  is  an  open  question  whether  even  a  judicial  separation  (not  amounting 
to  a  divorce)  would  give  a  wife  the  power  to  acquire  a  domicile  for  herself." 
Dicey.  Conflict  of  Laws,  132.     See,  also,  Westlake,  Priv.  Int.  Law,  325. 

As  to  capacity  of  a  married  woman  to  acquire  a  separate  domicile  from  her 
husband,  see  59  L.  R.  A.  146-149,  84  Am.  St.  Rep.  27-37;  Minor,  ponflict 
of  Laws,  §§  47-51. 

14A  legitimate  child  takes  the  domicile  of  his  father.  Lamar  v.  Micou,  112 
U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751  (1884)  ;  Allgood  v.  Williams,  92  Ala. 
551,  8  So.  722  (1891).  And  after  the  death  of  his  father  ordinarily  that  of 
his  mother.  Potinger  v.  Wightman,  3  Meriv.  67  (1817) ;  Brown  v.  Lynch,  2 
Bradf.  Sur.  (N.  Y.)  214  (1852).  But  it  ceases  to  follow  that  of  the  mother 
upon  her  remarriage.  School  Directors  of  Borough  of  Westchester  v.  James, 
2  Watts  &  S.  (Pa.)  568,  37  Am.  Dec.  525  (1841)  ;  Allen  v.  Thomason,  11 
Humph.  (Tenn.)  536,  54  Am.  Dec.  55  (1851).  Contra:  Succession  of  Lewis. 
10  La.  Ann.  789,  63  Am.  Dec.  600  (1855).  See  Minor,  Conflict  of  Laws,  §§ 
38,  39.  The  domicile  of  an  illegitimate  child  follows  that  of  his  mother.  Uduy 
v.  Udny,  L.  R.  1.  II.  L.  Sc.  441  (1869) ;  Blythe  v.  Ayres,  96  Cal.  532,  31  Pac. 
915,  19  L.  R.  A.  40  (1892).  If  legitimated,  he  takes  that  of  his  father.  See 
Minor,  Conflict  of  Laws,  §  33. 

As  to  emancipated  and  abandoned  children,  see  Jacobs  on  Domicile,  §§  231- 
237. 

It  has  been  held  that  a  married  minor  cannot  acquire  an  independent  domi- 
cile. Robertson  v.  Robertson,  30  Vict.  L.  R.  546  (1905),  See  Minor,  Conflict 
of  Laws,  §  45. 

An  orphan  will  not  acquire  the  domicile  of  his  guardian  unless  he  is  taken 
into  the  guardian's  family.  School  Directors  of  Borough  of  West  Chester  v. 
James,  2  Watts  &  S.  (Pa.)  508,  37  Am.  Dec.  525  (1841). 

An  appointed  guardian  is  generally  regarded  as  possessing  no  authority  to 
change  his  ward's  domicile  beyond  the  territory  of  the  state  in  which  he  was 
appointed.     See  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751 


Ch.    5)  DOMICILE.  217 

(1884).  See,  also,  8D  Am.  St.  Rep.  27S-280 ;  58  L.  R.  A.  931-941 ;  Minor,  Con- 
flict of  Laws,  §§  40,  41. 

As  to  the  acquisition  of  a  domicile  by  an  insane  person  placed  under  guard- 
ianship, see  Talbot  v.  Chamberlain,  149  Mass.  57,  20  N.  E.  305,  3  L.  R.  A.  254 
(1889) ;  Mowry  v.  Latham,  17  R.  I.  1180,  23  Atl.  13  (1891) ;  Minor,  Conflict  of 
Laws,  §  55. 

Continental  Law. — The  law  of  nationality  determines  the  civil  status  of 
a  person.  France,  article  3,  Civ.  Code;  Germany,  articles  7,  13-15,  17-22, 
Law  Intr.  Civ.  Code ;  Italy,  article  6,  Prel.  Disp.  Civ.  Code.  The  law  of  domi- 
cile plays,  therefore,  a  comparatively  subordinate  role.  It  will  govern  where 
a  party  is  not  a  subject  of  any  country.  France,  App.  Alger,  June  7,  1906 
(34  Clunet,  409);  Trib.  Civ.  Seine,  Feb.  14,  1908  (35  Clunet,  813).  And 
never  has  been  the  subject  of  any  country.  Germany,  article  29,  Law  Intr. 
Civ.  Code. 

In  both  France  and  Italy  a  domicile  once  acquired  will  continue  until  the 
acquisition  of  a  new  domicile.  France,  article  103,  Civ.  Code ;  Cass.  March 
24.  1896  (S.  1897.  1.  1(X») :  Ifalif,  article  17.  Civ.  Code:  Cass.  Rome,  March 
17,  1893  (La  Legge  1893,  1,  GS5).  In  Germany  a  domicile  will  be  lost  if  it  is 
given  up  animo  et  facto  though  no  new  domicile  is  acqiiired.  A  person  may, 
therefore,  be  without  a  domicile.  On  the  other  hand,  it  is  recognized  that  a 
person  may  have  several  domiciles.     Section  7,  Civ.  Code. 

If  a  party  has  neither  a  known  nationality  nor  a  known  domicile,  the  ter- 
ritorial law  will  be  applied.    App.  Fau,  May  14,  1907  (34  Clunet,  1109). 

French  Authorized  Domicile.— "A  foreigner  authorized  by  decree  to  es- 
tablish his  domicile  in  France  shall  enjoy  all  civil  rights.  The  effect  of  such 
authorization  shall  cease  after  the  expiration  of  five  years  if  the  foreigner 
■does  not  apply  for  naturalization,  or  if  such  application  be  denied."  Article 
13,  Civ.  Code. 

Consult,  also,  A.  Chausse,  Du  role  international  du  domicile,  24  Clunet,  5- 
31 ;  and,  as  to  nationality,  see  A.  Weiss,  Traite  de  droit  international  prive, 
vol.  I. 

Before  the  law  of  February  G,  1893,  a  married  woman  of  French  nationality 
though  legally  separated  from  her  husband,  could  not,  without  his  authoriza- 
tion, acquire  a  foreign  nationality.  Cass.  March  18,  1878  (D.  1878,  1,  201)  — 
Bauffremont  Case. 

Domicile  and  Taxation. — A  personal  tax  may  be  assessed  against  a  per- 
son at  his  domicile.  Borland  v.  City  of  Boston,  132  Mass.  89,  42  Am.  Rep. 
424  (1882).  The  devolution  of  personal  estate  may  be  taxed,  irrespective  of 
the  actual  situs  of  such  property  in  the  jurisdiction  where  the  deceased  had 
his  last  domicile.  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096,  18  L.  R.  A.  709 
(1893);  Frothingham  v.  Shaw,  175  Mass.  59,  55  N.  E.  623,  78  Am.  St.  Rep. 
475  (1899).  As  to  taxation  of  transfers  inter  vivos,  see  People  v.  Reardon. 
184  N.  Y.  431,  77  N.  E.  970.  8  L.  R.  A.  (N.  S.)  314,  112  Am.  St.  Rep.  628 
{1906),  affirmed  204  U.  S.  152,  27  Sup.  Ct.  188,  51  L.  Ed.  415  (1907). 


.218 


GENERAL  TROVISIONS. 


(Part  1 


CHAPTER  VI. 
CAPACITY.    - 


yd:P^' 


SECTION  1.— NATURAL  PERSONS. 


0 


ROSS  V.  ROSS  (1880)  129  Mass.  243,  246,  37  Am.  Rep.  321, 
Gray,  C.  J. :  "It  is  a  general  principle  that  the  status  or  condition  of 
a  person,  the  relation  in  which  he  stands  to  another  person,  and  by 
which  he  is  qualified  or  made  capable  to  take  certain  rights  in  that 
other's  property,  is  fixed  by  the  law  of  the  domicile,  and  that  this 
status  and  capacity  are  to  be  recognized  ancrTipIieTd  in  every  other 
state,  so  far  as  they  are  not  inconsistent  with  its  own  laws  and  policy. 
Subject  to  this  limitation,  upon  the  death  of  any  man,  the  status  of 
those  who  claim  succession  or  inheritance  in  his  estate  is  to  be  ascer- 
tained by  the  law  under  which  that  status  was  acquired.  His  personal 
property  is  indeecTto  be  distributed  according  to  the  law  of  his  domi- 
cile at  the  time  of  his  death,  and  his  real  estate  descends  according  to 
the  law  of  the  place  in  which  it  is  situated;  but,  in  either  case,  it  is 
according  to  those  provisions  of  that  law  which  regulate  the  succes- 
sion or  the  inheritance  of  persons  having  such  a  status. 

"The  capacity  or  qualification  to^inherit  or_succeed  to  property, 
which  is  an  mciHenT^the  status^or^onditjonTrequiring  no  action l:o 

rojTi_the  capacity  or  competency 
A  capacity 


give  it  effect^Jg_J2--^^^^^"§"^^^^ 

to  enter  into  contracts  that  confer  rights  upon  other;j. 

to  take  and  liave^drfferT  fronTa  capacity  to  do  and  contract ;  in  short, 

a  capacity  of  holding  from  a  capacity  to  act.     Generally  speaking,  -^lie 

validity  of  a  personal  contract,  even  as  regards  the  capacitv  of^tliepartv 

to  make  rn^as  ii'»:4l3je--ga^&-gj--^-fnarried~wom       or  an  infant,  is  to  be 

determinecFEy  the  law  of  the  state  in  which_  it  is  made.     Milliken  v. 

Pratt,  125  Massr374,  28  Am.  Rep.  ^41,  and  authorities  cited." 


EXTRACT  .FROM  FOOTE,  PRIVATE  INTERNATIONAL 
JURISPRUDENCE,  363,  366:  "Capacityjs^obyiously  in  theory  a 
quality — one  of  those  qualitatespersonales  impressge  ot  which  HuBei' 
speaks — and  mayTje-tdkuii  TTs'cquivalent  to  a  legal_power  of  doing  an 
act  which  can  admiT!?dty  be  clon"ej3y  some  persons.  If  the  act  to  whicli 
the  capacity  is  referrec 


iQt  legally  be  done  at  all,  it  is  a  misuse 
of  words  to  speak  of  a  jegal  capacity~or  incapacityTo  do  it     Spcak~ 


Ch.    6)  CAPACITY.  219 

ing  in  this  strict  sense,  capacity  is  only  remarkable  by  its  absence — 
it  is  invariably  some  incapacity  that  characterizes  the  exceptional  case 
of  which  the  law  is  called  upon  to  take  notice.  Full_capacitv^  in  short, 
is  the  ordinary  status  or  conditioii  of  mankind,  which  can  never  give 
rise  to  criticism  or  remark;  and  the  only  logical  incapa^ities_vvhich 
exist  in  .bnglisli  law  are  those  occasioned  by  infancy  and  insanity. 
A  law  wTjTcTT  purports  to  impose  a  general  incapacity  does  not  impose 
an  incapacity  at  all;    it  simply  prohibits  an  act." 


EXTRACTS  FROM  ARTICLE  BY  V.  BAR  ON  THE  CON- 
FLICT OF  LAWS  IN  V.  HOLTZENDORFF'S  ENCYCLOP^- 
DIE  DER  RECHTSWISSENSCHAFT  (6th  Ed.  by  J.  Kohler)  vol. 
II,  23-35:  "Two  attributes  belong  ordinarily  to  a  person:  (1)  Ca- 
pacity to  acquire,  to  possess  and  to  exercise  rights,  and  (2)  capacity 
to  act  with  legal  effect.  Both  attributes,  capacity  for  rights  (Rechts- 
fahigkeit)  and  capacity  to  act  (Handlungsfahigkeit),  or  to  use  the 
more  exact  expression  of  the  present  German  Civil  Code — Geschafts- 
fahigkeit — since  the  capacity  to  commit  a  tort  must  be  regarded  from 
a  different  point  of  view — were  included  by  Savigny,  following  the 
older  theory,  and  are  still  included  to  a  large  extent  in  tlie  foreign 
juristic  literature,  under  the  general  name  of  status  of  the  person ; 
i.  e.,  the  condition  (Zustand)  and  capacity  of  a  person  (etat  et  capaci- 
te),  which,  in  accordance  with  the  nature  of  things  and  at  the  same 
time  in  conformity  with  the.  traditions  on  the  continent  of  Europe, 
should  be  governed  by  the  domestic  law  of  such  person  (i.  e.,  the  lex 
domicilii,  or  the  national  law).  This  theory  in  regard  to  the  status  of 
a  person,  however,  cannot  be  carried  through.  If,  for  example,  in 
the  native  state  of  a  person  there  are  incapacities,  based  perhaps  upon 
religious  grounds,  they  cannot  be  given  eft'ect  in  a  state  where  complete 
freedom  in  worship  prevails.  The  logical  effect  of  the  statutory 
theory,  which  might  show  the  incorrectness  of  the  latter,  is  avoided 
by  declaring  that  laws  of  this  kind  are  imperative  (Savigny)  or  are 
laws  of  public  order,  which  have  no  effect  beyond  the  territorial  limits, 
but  are  absolutely  binding  within  such  territory, 

"Restrictions  on  the  capacity  for  rights,  on  the  one  hand,  and  re- 
strictions on  the  capacity  to  act,  on  the  other— for  in  the  case  of  physi- 
cal beings  we  are  dealing  really  with  restrictions  imposed  by  law, 
full  and  unrestricted  capacity  being  the  rule — rest,  however,  upon 
entirely  different  legislative  aims.  If  certain  classes  nf  persons  are 
restricted  in  their  capacity  for  rights,  the  intent  is  to  discriminate 
against  tiieTiTf^rFjjifir  rapadty^to^act  is  restrjcted  the  intention  is  prb- 
tection — -protection  agains^the  injurious  consequences  of  their  own 
will,  easily^isIed3&^^^'^*s^~^^-JIlsufficient  understanding.  This  funda- 
mental  dT1?erence  in  aim^  regiiires.  from  an  international  standpoint. 
an  entirely  different  treatment. 


220  GENERAL  PROVISIONS.  (Part  1 

"1.  The  capacity  for  rights  is  to  be  governed  by  the  law  towhJch 
the  transaction  Tn  question  is  subjecFTiTotlTer  respects.  ThaFls^Jhe 
lex  fori,  contrafy^o  JSavigny's  opinion,  is  not  to  be'applied  always,  but 
the  question^  for^exarhpTey^whether  ^mebody  can  acquire  real  estate 
is  to  be  determined  according  to  the  lex  rei  sitae,  and  the  person  wjio 
is  a  slave  according  to  his  home  law  is  to  be  regarded  as  free  so  lon_g 
as  he  stays  with  us  and  cannot  be  recovered  by  means  of  the  rei  vin- 
dicatio  in  accordance  with  his  nationallawT"  *     *     * 

"2.  With  respect  to  the  laws  restricting  the  capacity  to  act,  on  the 
other  hand,  it  follows,  from  their  aim  to  protect  the  person  so  restrict- 
ed in  his  capacity,  that  such  protection  should  find  its  limits  at  all 
events  in  what  has  seemed  necessary  by  the  law  of  the  state  of  which 
the  person  in  question  is  a  subject.  A  more  extended  protection, 
which  a  person  might  enjoy  in  another  state,  would  only  cause  con- 
fusion; e.  g.,  where,  state  A  would  regard  a  person  within  its  terri- 
tory, who  is  a  subject  of  state  B  and  who  is  of  age  under  the  law  of  B, 
as  a  minor  because  he  had  not  attained  the  age  required  for  majority 
in  state  A.  On  the  other  hand,  in  the  converse  case,  where  a  person 
not  of  age  according  to  the  law  of  his  home  state  enters  into  legal 
transactions  in  a  state  in  accordance  with  whose  law  he  is  of  age,  the 
nullity  of  the  transaction  does  not  necessarily  follow.     *     *     * 

"It  is  immaterial  whether  the  incapacity  to  act  has  been  imposed  by 
law  directly  or  by  the  decree  of  a  competent  court.    *     *     *" 

^^-"^yu*-^*^   \^  '^'^'  NICHOLS  &  SHEPARD  CO.  v.  MARSHALIJ. 

^  )    ^v*^*^    ,.jjC<*^^     jy  '  (Supreme  Court  of  Iowa,  1899.     108  Iowa,  518,  79  N.  W.  282.) 

L- •' '  ^^^^^^^"^S''^^'^'^     Deemer,  J.    Defendant  is  a  married  woman  domiciled  in  this  state. 
^^^  ^u^^-^'*^^^  ^"  *^^  about  the  9th  day  of  July,  1894,  she  signed  the  note  in  suit,  in 

*|,',  the  state  of  Indiana,  at  which  place  she  was  temporarily  visiting,  as 

surety  for  Milton  W.  Gregory.  The  note  was  made  payable  at  the 
Indiana  National  Bank  of  Indianapolis.  The  laws  of  Indiana  (section 
6964,  Burns'  Rev.  St.)  provide  that  "a  married  woman  shall  not  enter 
into  any  contract  of  suretyship,  whether  as  indorser,  guarantor,  or  in 
any  other  manner;  and  such  contract,  as  to  her,  shall  be  void."  It 
is  insisted  on  behalfof  appellant  that,  as  defendant  was  domiciled 
in  this  state  at  the  Jime~"sTTe  made_tHe  note,_her  capacity  to  contract 
followed  her  into_the  _state._of  Indiana,  and  validated  her  contract 
made  in  that  commonwealth,  and  that  the  right  of  a  married  woman 
to  make  aContract  reMes^toJier^contractual  capacity,  and,  when  given 
by  the  law-^oQJje  domicile,  follows  the  person.  Our  statutes  permit 
the  making  of  contracts  of  suretyship  by  married  wornen,  and,  if  ap- 
pellant's postulate  be  correct,  it  follows  that  plaintiff  is  entitled  to 
recover.  The  general  rule  seems  to  be.  however,  that  the  validity. 
nature,  obligation,  and  mterpretation  of  contracts  are  to  be  governed 


Ch.   6)  CAPACITY.  221 

by  the  lex  lp^contractus_jjid_actus^  Savary  v.  Savary,  3  Iowa,  272 ; 
Boyd  V.  ETHs,  11  Iowa,  97;  Arnold  v.  Potter,  22  Iowa,  191;  McDan-- 
iel  V.  Chicago  &  N.  W.  Ry.  Co.,  24  lowa^  417;  Burrows  v.  Stryker, 
47  Iowa,  477 ;  Bigelow  v.  Burnham,  90  Iowa,  300,  57  N.  W.  865,  48 
Am.  St.  Rep.  442.    The  rule^js  also  well  settj^d  that  personaljtatus  is  ^      ^  ^. 

to  be  deterrnined  by  the^lex^dOTUcJlii.  Ross  v:'Ross7T29"Mass7243,  37  /  if/v/v^^^"*^^^  . 
Am.  ReprS^T  Continental  jurists  ha:^:e.,generally  maintained  that  per-  ^'^'^^  c/tf>'^^^^ 
sonal  laws  of  the  domicile^affecting  the  status  and  capacity  of  all  in-  >M'^'^'^ 
habitants  of  a  particular  class,  bind  them,  wherever  they  may  go,  and 
that  the  validity  of  all  contracts,  in  so  far  as^e  ca"pacity  of  theparties 
to  contract  is  in"voTved^  4epeftds-4ipQrL the  lex  domicilii.  Thus,  the  Code 
Napoleon  enacts,  "The  laws  concerning  the  status  and  capacity  of  per- 
sons govern  Frenchmen  even  when  residing  in  a  foreign  country."  See, 
also,  Story,  Confl.  Laws  (8th  Ed.)  §§  63-66 ;  Whart.  Confl.  Laws  (2d 
Ed.)  §  114.  Some  of  the  English  cases  have  also  followed  this  rule. 
Guepratte  v.  Young,  4  De  Gex  &  S.  217,  5  Eng.  Ruling  Cas.  848  ;  Sotto- 
mayor  v.  De  Barros,  47  Law  J.  Prob.  23,  5  Eng.  Ruling  Cas.  814.  But 
see,  apparently  to  the  contrary,  Burrows  v.  Jemino,  2  Strange,  733 ; 
Heriz  v.  De  Casa  Riera,  10  Law  J.  Ch.  47.  We  dQ_nqt_think  the  con- 
tinental  rule  is  applicable  to  our  situation  and  condition.  A  state  has  the 
undoubted  right  t^detine  ihe  capacity  or  mcapacity  of  its  inhabitants,  q^/ 

be  they  residents  or  temporary  visitors;    and  itT__this_country  where  r j^ ' 

travel  is  soj:ommon,  and  business  has  so  little  regard  for  state  line's.  ^     .  jl 
it  is  morejust,  as  welj_as  more  convenientJTo'Tlave^Tegard  to_the  '^ 
laws  of  the  place  of  contract,  as  a  uniform  rule  op^ratingijon   all 
contracts^and  which  the  contracting  parties  may  be  presumed  to  have 
had  in^ontemplation  when  making  their  contracts^^  than  to  require 
them,  at  their  peril,  to  know  the  domicile  of  those  with_  whom  they  >. 

deal^  anrTTrr-TTM-eilyiln  ^rtrr^  law    of    that    domicile,    ho\v£Y£IL_remote, 
which  in  many  cases  could  not  be  done  without  such  delay  as  would 
greatly  cripple  the  power  of  contracting  abroad  at  all.     Indeed,  it  is^ 
a  rule  of  almost  universal  application  that  the  law  of  the  state  where  i 
the  contract  is  made  and  where  it  is  to  be  performed  enters  into,  and  ] 
becomes  a  part  of,  that  contract,  to  the  same  extent  and  with  the  same  j 
effect  as  if  written  into  the  contract  at  length.     Each  state  must  pre- 
scribe for  itself  who  of  its  residents  have  capacity  to  contract,  and 
what  changes  shall  be  made,  if  any,  in  the  disabilities  imposed  by  the 
common  law.    Thus,  in  Thompson  v.  Ketchum,  8  Johns.  192,  the  note 
was  made  in  Jamaica.     The  defense  was  infancy,  according  to  the 
laws  of  New  York.    It  was  determined  that  the  transaction  was  sub- 
ject to  the  laws  of  the  place  of  contract,  and  that  infancy  was  a  de- 
fense, or  not,  according  to  the  laws  of  Jamaica.     Mr.  Justice  Story, 
in  his  commentaries  on  Conflict  of  Laws,  says :  "In  regard  to  questions 
of  minority  or  majority,  competency  or  incompetency  to  marry,  inca- 
pacities incident  to  coverture,  guardianship,  emancipation,  and  other 
personal  qualities  and  disabilities,  the  law  of  the  domicile  of  birth,  or 
the  law  of  any  other  acquired  and  fixed  domicile,  is  not  generally  to 


f>[l 


Til  GENERAL  PROVISIONS.  (Part    1 

govern,  but  the  lex  loci  contractus  aut  actus,  where  the  contract  is 
made  or  the  act  done."  Story,  Confl.  Laws,  §§  103,  241.  See,  also,  2 
Kent,  Comm.  233,  note;  Id.  458;  Id.  459,  note.  It  will  be  observed 
that  Chancellor  Kent,  in  some  passages  of  his  text,  seems  to  incline 
to  the  civilian  doctrine,  yet  the  notes  clearly  indicate  that  he  concurs 
with  Justice  Story.  See  further,  on  this  subject,  Story,  Confl.  Laws 
(4th  Ed.)  §§  101,  102.  The  case  of  Pearl  v.  Hansborough,  9  Humph. 
(Tenn.)  426,  is  almost  exactly  in  point.  In  that  case  a  married  wo- 
man, domiciled  with  her  husband  in  the  state  of  Mississippi,  by  the 
law  of  which  a  purchase  by  a  married  woman  was  valid,  and  the 
property  purchased  went  to  her  separate  use,  bought  personal  property 
in  Tennessee,  by  the  law  of  which  married  women  were  incapable 
of  contracting.  The  contract  was  held  void  and  unenforceable  in 
Tennessee.  See,  also,  Male  v.  Roberts,  3  Esp.  163 ;  Milliken  v.  Pratt, 
125  Mass.  374,  28  Am.  Rep.  241;  Carey  v.  Mackey,  82  Me.  516,  20 
4tl.  84,  9  L.  R.  A.  113,  17  Am.  St.  Rep.  500;  Baum  v.  Birchall,  150 
Pa.  164,  24  Atl.  620,  30  Am.  St.  Rep.  797;  2  Pars.  Cont.  (8th  Ed.) 
=■^574,  note;  Id.  *575-*578.  Saul  v.  Creditors,  5  Mart.  (N.  S.)  569, 
16  Am.  Dec.  212,  seems  to  be  opposed  to  this  rule.  But  as  the  case 
is  from  Louisiana,  which  state  follows  the  civil  law,  it  is  not  an  au- 
thority. We  may  safely  affirm,  with  Chancellor  Kent,  that  while  the 
continental  jurists  generally  adopt  th_e_law  ^f  domicile,  supposing~lt 

\to  come  in  conflict  with  the  law  of  the  place  of  cojitract^jjjie  Kngh'sh 
common  1aw''adopts  the  lex  loci  contractus.  Lord  Eldon,  in  Male  v. 
Roberts,  supra,  said :  "It  appears  from  me  evidence  in  this  case  that 
the  cause  of  action  arose  in  Scotland,  and  the  contract  must  be  there- 
fore governed  by  the  laws  of  that  country,  where  the  contract  arises. 
Would  infancy  be  a  good  defense  by  the  laws  of  Scotland,  had  the 
action  been  commenced  there?  What  the  law  of  Scotland  is  with 
respect  to  the  right  of  recovering  against  an  infant  for  necessaries, 
I  cannot  say;  but,  if  the  law  of  Scotland  is  that  such  a  contract  as  the 
present  could  not  be  enforced  against  an  infant,  that  should  have  been 
given  in  evidence,  and  I  hold  myself  not  warranted  in  saying  that 
such  a  contract  is  void  by  the  law  of  Scotland  because  it  is  void  by  the 
law  of  England.  The  law  of  the  country  where  the  contract  arose 
must  govern  the  contract,  and  what  that  law  is  should  be  given  in  evi- 
dence to  me  as  a  fact.  No  such  evidence  has  been  given,  and  I  cannot 
take  the  fact  of  what  that  law  is  without  evidence."  It  would  seem 
in  this  case,  though  not  distinctly  stated,  that  both  parties  were  domi- 
ciled in  England.  The  result  of  the  application  of  these  rules  is  that 
the  contract  was  void  where  executed,  and  cannot  be  enforced  by  the 
courts  of  this  state.    Affirmed.^ 

1  The  law  of  the  place  of  performance  is  of  no  effect  upon  the  question  of 
capacity.  Garrigue  v.  Kellar,  1G4  Ind.  67G,  74  N.  E.  523,  G9  L.  R.  A.  870,  108 
Am.  St.  Rep.  324  (1905). 

Ill  Sottomayor  v.  Do  BaiTos,  L.  R.  Prob.  &  Div.  1  (1877),  it  is  said  to  be  "a 
well -recognized  principle  of  law"  that  the  question  of  personal  capacity  to 


Ch.  6)  CAPACITY.  223  _     p 


.aT^ 


THOMPSON  V.  TAYLOR.  -^-  ^-^-^^^  /  "^'""^  ^  V ' 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1901.    66  N.  J.  Law,  253,  49  Atl.     7^  /y^.jL^Jtz^t>4  ^  *^ 
544,  54  L.  R.  A.  585.  88  Am.  St.  Rep.  485.)  ^  .y^. 

This  action  was  brought  in  the  circuit  court  upon  a  note,  of  which  ^^^^^  n^^^t^ 

the  following  is  a  copy:    "$423.29.    Englewood,  N.  J.,  Oct.  10,  1898.  """^^.V^  Jo^Oii^ 


Three  months  after  date  I  promise  to  pay  to  the  order  of  W.  Bernard    ci^^'''*'^'^^    b 
Taylor  four  hundred  twenty-two  -yioo  dollars,  at  44  Broad  St.,  New 
York  City;   value  received.     Lillian  B.  Taylor." 

Indorsed:    "W.  Bernard  Taylor,  44  Broad  St." 

The  note  was  signed  by  Lillian  B.  Taylor  at  the  time  and  place  of 
its  date,  she  being  then  the  wife  of  the  payee.     She  signed  it  at  her     ,  •      i-  / 

husband's  request,  and  solely  for  his  accommodation,  and  delivered  it  to  \^  -e^^^*^    '^'^ 
him  without  any  express  limitation  on  the  use  he  might  make  of  it.      .   u  U   flfi-CAi4y^ 
The  husband  at  once  took  the  note  to  New  York  City,  and  there  trans-    "       v 
ferred  it,  with  his  indorsement,  to  the  plaintifi,  to  take  up  two  similar 
notes  held  by  him,  and  then  past  due,  aggregating,  with  interest,  the 
amount  of  this  note ;   which  two  notes  the  defendant  had  signed  under 
the  same  circumstances,  and  which  her  husband  had  transferred  to  the          ,      *. 
plaintiff  in  the  same  manner  for  cash.     The  plaintiff  knew  that  the     o^'^j'^^ 
payee  and  maker  were  husband  and  wife,  but  had  no  further  notice, 
outside  of  the  notes  themselves,  of  the  circumstances  under  which 
they  had  been  signed. 

The  husband  and  wife  have  been  during  all  the  time  above  referred 
to,  and  still  are,  domiciled  in  New  Jersey. 

Since  1892  the  statutes  of  New  York  have  provided  that  "a  married 
woman  may  contract  with  her  husband  or  any  other  person,  to  the 
same  extent,  with  the  like  effect,  and  in  the  same  form  as  if  unmarried, 
and  she  and  her  separate  estate  shall  be  liable  thereon,  whether  such 
contract  relates  to  her  separate  business  or  estate  or  otherwise,  and  in 
no  case  shall  a  charge  upon  her  separate  estate  be  necessary."  Laws 
1892,  c.  594,  §  1. 

Deeming  the  case  one  of  doubt  and  difffculty,  the  Bergen  county 
circuit  court  certified  the  foregoing  facts  to  the  Supreme  Court  for  its  4rC>. 
advisory  opinion  on  the  question  whether,  on  those  facts,  the  plaintiff  . 

is  entitled  to  judgment  against  Lillian  B.  Taylor  for  the  sum  mention-       ^^'■*'*«^'^  ^^*^ 
ed  in  the  note  and  interest.  ^      ^^^^^   i^^^i^U^ 


enter  into  a  contract  is  to  be  determined  by  tb,e  law  of  domicile.  This  was 
obiter,  however,  since  the  point  at  issue  related  to  the  validity  of  a  marriage. 
"It  has  been  doubted  whether  the  personal  competency  or  incompetency  of 
an  individual  to  contract  depends  on  the  law  of  the  place  where  the  contract  ii^^^/  .,,  Homo'^^^^ 
is  made  or  on  the  law  of  the  place  where  the  contracting  party  is  domiciled,  "^"^^^v^ 
Perhaps  in  this  country  the  question  is  not  finally  settled,  though  the  pre- 
ponderance of  opinion  here,  as  well  as  abroad,  seems  to  be  in  favor  of  the 
law  of  the  domicile.  It  may  be  that  all  cases  are  not  to  be  governed  by  one 
and  the  same  rule."  Lord  Macnaghten  in  Cooper  v.  Cooper,  13  App.  Cas.  88, 
108  (1888).    Compare  Ogden  v.  Ogden,  [1908]  P.  (C.  A.)  46. 


224 


GENERAL  PROVISIONS. 


(Part  1 


i 


n 


The  Supreme  Court,  after  hearing  argument,  advised  the  circuit 
court  that  the  plaintiff  was  not  entitled  to  judgment  against  Lillian  B. 
Taylor  upon  the  note  in  suit.  65  N.  J.  Law,  107,  46  Atl.  567.  Judg- 
ment in  accordance  with  this  advisory  opinion  was  thereupon  entered 
by  the  circuit  court  against  the  plaintiff,  who,  by  writ  of  error,  remov- 
ed that  judgment  into  this  court. 

Garrison,  J.  The  note  in  suit  was  not  a  New  Jersey  contract. 
The  parties  to  it  in  this  state  were  husband  and  wife.  By  force  of 
section  14  of  our  married  women's  act,  there  is  in  this  state  no  law 
to  enable  husband  or  wife  to  contract  with  each  other,  excepting  as  at 
common  law.  3  Gen.  St.  p.  2015;  Woodruff  v.  Clark,  42  N.  J.  Law, 
198 ;   Turner  v.  Davenport,  61  N.  J.  Eq.  18,  47  Atl.  766. 

Hence  the  written  promisejof  the  wife  to  pay  a  sum  of  money  to 
the  order  of  her  husband,  signed  by~Her~aiid--dclivcrcd  to  Mm  in  the 
state  of  New  Jersey,  did  not  constitute  arcontractr  When^Tfierefore, 
the  note  left  this  state  no  legarcoMracy^was ~m "existence;  l*^ational 
Bank  of  Rahway' vTBrewsTer; 49  N.7-~Law7231,  12"  Atl.  769.  In  New 
York  the  above-mentioned  feature  of  the  common-law  rule  has  been 
expressly  superseded  by  an  enabling  act  that  empowers  a  married  wo- 
man to  contract  with  her  husband  to  the  same  extent  and  in  the  same 
form  as  if  unmarried. 

The  husband,  there fore^_jiaving  in  his  possession,  in_jthe_stai£-^  of 
New  York,  his  wife'snote^  intrusted  to  him  under  the  circumstances 
certified  in  this  case,  had  the  means  of  making  for  her  a  contract  of 
suretyship  that  moiild  he  vahdjh]^  the  law  "of  the  place  where  it  came 
into  legal  existence  and  wherej^t  was  to  beeper formecT  By  his  indorse- 
ment  and  delivery  of  the  signed  note,  tTie  wife  was_as_  effectuallyjiound 
to  the  payee  aS  if  she  had  personally  executed  the  note  in  the  st^e  of 
New_Ygrlc 

Where  a  note  is  signed  in  this  state,  butjs,  passed  away,  andcomgs 
first  into  legal  exTs^eiiceinthe  state  of  New  York,  in  contemplation 
of  law  it  waS-mad£_m-the_latter  juTisdictiom  GampBell  v.  Nichols, 
33  N.  J.  Law,  82.  The  noteTTherefore^  is  a^.contract  made  in  the  slate 
of  New-Y^tik_upon  the  facts  certified^without  reference  to  theJegaJ 
rule  that  a  note  madej)ayable~at  a  particular  place  is  to  be  treated  in 
all  respects  as  if  made  at  that  place,  for  whicITabundant  authority  is 
cited^inJ.HeT)rief^riHF"pfaintiff^s_cgunser 

To  the  next  proposition  of  the  plaintiff,  viz.  that  such  a  contract, 
made  in  New  York,  and  valid  by  its  laws,  will  be  enforced  by  the 
courts  of  New  Jersey,  two  objections  are  raised:  First.  That  the 
incapacities  of  a  wife  under  the  common  law,  if  not  removed  by  the 
statute  law  of  her  domicile,  follow  her  wherever  she  goes;  so  that, 
if  at  home  she  be  unable  to  bind  herself  as  surety,  she  may  nowhere 
bind  herself  by  such  a  contract.  Secondly.  That  the  retention  in  our 
law  of  so  much  of  the  common  law  as  prevented  married  women  from 
becoming  sureties  is  a  declaration  by  the  Legislature  of  a  public  policy 
to  which  the  courts  should  give  effect  by  refusing  to  enforce  obliga- 


Ch.  6)  CAPACITY.  225 

tions  of  this  nature  incurred  by  its  citizens  in  other  states  where  this 
disabiHty  no  longer  exists. 

Both  of  these  points  are  taken  in  the  brief  of  counsel  for  the  de- 
fendant, and  each  of  them  receives  some  support  from  the  opinion 
delivered  in  the  Supreme  Court,  although  the  actual  decision  of  the 
case  is  rested  upon  the  second  ground,  viz.  that  of  public  policy. 

It  will  be  necessary,  therefore,  to  consider  each  of  these  propositions. 
The  first  claim  is  that  the  capacity  of  a  niarried  woman  tqmake  a 
contracrofrnielyship  ib  goTernedbvJhe_lawof  her_  domicile,_and_  hot 
by  the  !aW~DtTlTe~place  where  the  contract  is  made  and  where  it  is  to 
be  performed ;  in  other  words,  thaTcapacity  to  contract  is  governed  by 
the  law  of^dbmicile,  and  not T5y  The  lex  loci  contractus.  The  discussion 
of  this  question  by  the  dvTTians  and  in  early  judiciaFwritings  occupied 
much  space,  and  received  the  closest  attention  from  Mr.  Justice 
Story  as  one  in  which  the  doctrines  of  the  civil  law  could  not  be  made 
to  harmonize  with  the  commercial  rule  upon  the  subject.  It  is  rarely 
worth  while  to  search  back  of  Story  upon  such  a  question,  especially 
if  he  has  decided  against  the  civil-law  rule.  In  his  Commentaries 
upon  the  Conflict  of  Laws,  after  a  comprehensive  review  of  the  au- 
thorities. Judge  Story  reached  the  conclusion  that,  in  regard  to  the 
incapacities  incident  to  coverture  and  other  personal  disabilities  to 
contract,  "the  laws  of  the  domicile  of  birth  or  the  law  of  any  other 
acquired  and  fixed  domicile  is  not  generally  to  govern,  but  the  lex  N^ 

loci  contractus  aut  actus — the  law  of  the  place  where  the  contract  is  *  ' 

made  or  the  act  done."    Story,  Confl.  Laws,  §  103. 

In  the  course  of  his  consideration  of  this  and  kindred  questions,  Mr. 
Justice  Story  quotes  so  frequently  from  the  civilians  that  upon  a  hasty 
reading,  the  opinions  of  those  jurists  may  be  taken  for  his  own ;  but 
there  can  be  no  question  as  to  the  commentator's  final  summary,  viz. 
that,  "although  foreign  jurists  generally  hold  that  thejiawof  the  dom- 
icile ought  to  govern  in  regard  to  the  capacity  of  persons  to  cdnFract. 
yet  the~common~Taw~holds "a  ditterent  doctrine,  namely,  that  the  lex" 
loci  contractus  is  to  govern."    Story,  Confl.  Laws,  §  241.  ~~ 

\Vitti  respect  to  another  American  commentator — Chancellor  Kent — 
it  is  both  interesting  and  important  to  observe  that  while,  in  some 
parts  of  the  text  of  his  Commentaries,  he  seems  to  favor  the  arguments 
of  the  foreign  jurists,  yet  in  his  later  notes  he  unequivocally  states 
the  rule  to  be:  "The  state  and  condition  of  the  person  according  to 
the  law  of  his  domicile  will  generally,  though  not  universally,  be  re- 
garded in  other  countries  as  to  acts  done,  or  rights  acquired,  or  con- 
tracts made  in  the  place  of  his  native  domicile ;  but  as  to  acts,  rights, 
or  contracts  done,  acquired,  or  made  out  of  his  native  domicile,  the 
lex  loci  will  generally  govern  with  respect  to  his  capacity  and  condi- 
tion."   2  Kent,  Comm.  233,  note  "c." 

To  the  same  effect  is  the  opinion  of  Chief  Justice  Gray  of  Massa- 
chusetts delivered  in  the  case  of  Milliken  v.  Pratt,  125  Mass.  374,  28 
Am.  Rep.  241,  where,  after  considering  the  whole  question,  he  decides 

LOR.CONF.L, — 15 


226 


GENERAL  PROVISIONS. 


(Part  1 


that  "the  validity  of  a  contract,  even  as  regards  the  capacity  of 
the  parties,  is  to  be  determined  by  the  law  of  the  state  where  it  is 
made," 

I  have  no  difficulty  in  reaching  the  conclusion  that  the  capacity  of 
Mrs.  Taylor  to  enter  into  a  New  York  contract  in  New  York  was 
governed  by  the  laws  of  New  York,  notwithstanding  her  domicile 
was  in  New  Jersey ;  and  that  the  contract  into  which  she  there  entered 
was  valid,  and  binding  upon  her. 

If  we  pass  to  the  reason  assigned  in  the  advisory  opinion,  we  shall 
see  that  it  rests  upon  the  doctrine  of  our  courts  that  a  contract  valid 
elsewhere  will  not  be  enforced  if  it  is  inconsistent  with  the  public  poli- 
cy of  the  jurisdiction  the  aid  of  whose  tribunals  is  invoked  for  the 
purpose  of  giving  it  effect. 

The  decisive  portion  of  the  opinion  of  Mr.  Justice  Gummere  is  in 
these  words:  "When  the J^^islaturejias  declared  the  policy  of  the 
state  in  relation  to  a  given  siibject-matteJV-itJs  the  duty  of  the  courts 
to  give  effect,  so  'far_ar^gossible^tothat  jpolicy" — citing  Felt  v.  Felt, 
59  N.  J.  Eq.  606,  45  Atl.  106,  49  Atl.  1071,  47X:R.  A.  546,  83  Am.  St. 
Rep.  613,  and  Union  Locomotive  &  Express  Co.  v.  Erie  Ry.  Co.,  37 
N.  J.  Law,  23.  There  can  be  no  doubt  as  to  the  duty  of  our  courts 
under  the   condition^tllus--p£Micate^;ii;Th^^  in  the   case   is 

whether  the  legislation  referred  to  injthe  opiniori.  is  a  declaration  of 
public  policy  Briefly  "summarized^  that  legislation  'confers  upon 
married  women  rights  to  contrairt^asifuflmarxi&d,-  save  as  to  contracts 
of  suretyship,  from  which  jio  benefit  is  obtained^-fojLtheir^separate  use. 
2  Gen.  St.  p.  2017,  §  26. 

In  my  judgment,  this  and  kindred  acts  of  legislation,  constituting 
together  our  married  women's  act,  and  passed  under  the  titles  of  "An 
act  for  the  better  securing  of  the  property  of  married  women,"  and 
"An  act  to  amend  the  law  relating  to  the  property  of  married  women," 
are  to  be  regarded  as  regulations  rendered  necessary  by  the  abroga- 
tion of  the  principles  of  the  common  law  concerning  coverture ;  and 
that  what  is  indicated  by  this  legislation  as  a  whole  is  the  abandonment 
of  a  public  policy  upon  the  subject,  and  the  future  regulation  of  it  by 
acts  of  legislative  discretion. 

The  distinction  between  regulative  legislation  and  the  adoption  of  a 
rinciple  of  public  law  is  too  important  to  be  lost  sight  of.  To  declare, 
as  the  common  law  did,  that  the  welfare  of  society  required  that  wives 
be  incapable  of  making  contracts,  is  an  illustration  of  the  adoption  of  a 
principle  which,  so  long  as  it  was  adhered  to,  constituted  a  rule  of  pub- 
lic policy.  When,  however,  civilized  states  became  satisfied  that  the 
welfare  of  society  was  not  best  served  by  the  maintenance  of  this  prin- 
ciple, it  was  abandoned  by  the  recognition  of  its  opposite,  viz.  that  mar- 
ried women  possessed  capacity  to  contract.  The  questions  that  then 
arose,  viz.  what  contracts  might  they  make,  and  what  might  they  not? 
while  calling  for  the  exercise  of  legislative  discretion  based  upon  con- 
siderations that  affected  a  large  class  of  individuals,  did  not,  either  in 


Ch.  6)  CAPACITY.  227 

theory  or  in  fact,  involve  any  principle  upon  which  the  general  wel- 
fare of  the  body  of  citizens  of  the  state  was  assumed  to  rest.  With 
the  abandonment  of  the  political  principle  the  matter  was  broken  up 
into  discretionary  exercises  of  legislative  regulation  in  the  course  of 
which  different  bodies,  or  the  same  legislative  body  at  different  peri- 
ods, might  lay  down  varying  rules  without  destroying  that  comity  that 
is  so  essential  to  commercial  confidence  and  intercourse.  Thus,  in  the 
case  certified  it  appears  that  the  state  of  New  York,  having  abandoned 
the  principles  of  the  common  law,  as  we  ourselves  have  done,  has  gone 
further  in  its  enabling  legislation ;  or,  what  is  the  same  thing,  has  re- 
tained less  of  what  the  conimon-law  rule  compelled ;  but  equally  and 
in  either  case  the  only  principle  involved  has  been  abandoned.  The 
respective  regulations  of  the  subject  equally  rest  upon  the  common 
ground  that  women  have  a  capacity  to  make  contracts,  subject  to  legis- 
lative control.  If  this  be  so,  comity  requires  that  we  mutually  give  ef- 
fect to  these  discretionary  acts  by  recognizing  the  validity  of  the  re- 
sulting contracts,  and  enforcing  them  in  our  courts,  even  when  they 
are  in  opposition  to  our  own  declared  discretion  upon  the  subject. 
This,  as  I  read  the  case  of  Wright  v.  Remington,  41  N.  J.  Law,  48,  32 
Am.  Rep.  180,  has  been  categorically  decided  in  our  Supreme  Court. 
In  that  case  a  wife  signed  two  notes  as  surety  for  her  husband  in  Illi- 
nois, where  the  common  law  had  been  abrogated  to  that  extent.  Suit 
was  brought  in  our  circuit  court  to  enforce  these  contracts  against 
the  wife.  Upon  a  case  certified  the  Supreme  Court  held  that  comity 
required  the  enforcement  of  the  notes  in  question. 

In  delivering  the  opinion  of  the  court,  Mr.  Justice  Reed  said :  "There 
can  be  no  question  but  that  the  contract  was  valid  by  the  law  of  Illi- 
nois. It  is,  therefore,  the  duty  of  the  courts  of  this  state  to  recognize 
and  enforce  it,  unless  it  appears  injurious  to  the  interests  of  the  state 
or  of  our  citizens.  But  nothing  approaching  this  result  can  be  deduced 
solely  from  the  fact  that  the  foreign  state  confers  upon  married  wo- 
men the  power  to  make  a  contract  of  suretyship.  *  *  *  Whatever 
may  be  our  opinion  of  the  policy  of  legislation  beyond  our  state,  we  are 
bound  by  the  principles  of  comity  to  recognize  its  validity,  imless  it 
clearly  contravenes  the  principles  of  public  morality,  or  attacks  the  in- 
terests of  the  body  of  the  citizens  of  our  state." 

Objection  upon  this  point  was  apparently  not  renewed  upon  the  writ 
of  error  in  this  court,  for  the  judgment  was  here  affirmed  without 
again  referring  to  it.    Remington  v.  Wright,  43  N.  J.  Law,  451. 

This  case,  upon  the  point  now  in  controversy,  states  the  correct  rule  • 
of  law  so  definitely  that  it  should  have  been  followed  in  the  Supreme 
Court. 

If,  as  was  suggested  jrp2]i_tlie_argument,  the  device  of_jLCQviding_  a 
place  of  periorma"nce~m_a  foreign  jurisdiction,  or  even  of  majdmrfhe 
actual  COTitfactJn  a  place_-Wii£X£^l2g  wife  was  empowered  to  contract 
directly  ^^^ffijTjprlinghqnrl^  should^eurged  as  a  "ground  for  sustaining 
such  a  contract  here,  or  for  enabling~~E!iE~iTus5and  to  sue  thereon  in 


228  GENERAL  PROVISIONS.  (Part  1 

our  courts  of  law,  a  different  question  would  be  presented.  It  may 
well  Ire-  riiat  sucli'S'pfoceedjng^would  run~aLliwaiL  the  seUkd  poli(!y  of 
our  law  wijh_respect  to  the  supervision^exercised^by  equity  over  the 
engagSment£oFmarried  persons,  which  is  retained~in  our  system  oTju- 
risprudenceT)y  thje^oltrteenth  JectioiT^ot  the  married  wornenV^ct. 
With  respect  to  this  question,  no  opTmonjsJexpressed] 

For  the  reasons  giveliT^he  judgment  of  the  circuit  court,  entered  in 
accordance  with  the  advisory  opinion  of  the  Supreme  Court  is  reversed. 

Magie;,  Ch.,  and  Krueger  and  Vroom,  JJ.,  dissent. 

,  Oo-  '"^'^^^  ^  ^  <^**^  -       FIRST  NAT.  BANK  v.  SHAW. 

-^    ^-    (Supreme  Court  of  Tennessee,  1902.     109  Tenn.  237,  70  S.  W.  807,  59  L,  R,  A. 

,  jj^  t*^-^     .ij^    McAusTER,  J.     The  only  question  presented  for  determination  upon 
j)^   ^^ y  yA*  "^     this  record  is  the  liability  of  the  defendant  Mrs.  Stella  V.  Harley  upon 
0-j[£  ^2j^         the    following   note:     "$500.00.    Geneva,    Ohio,    Dec.    3,    1892.     Six 
0     t'^^^'^^t^''*^       months  after  date,  value  received,  we  jointly  and  severally  promise 


;(jD  ^^  .L^      ^J^J^  to  pay  to  the  First  National  Bank  of  Geneva,  at  their  banking  house, 

Qaa^      l  J^  $500.00  interest  8%  after  maturity.     Interest  paid  to  maturity  $17.50. 

■  D.  H.  Harley.     Stella  V.  Harley.     M.  P.  Shaw."     Mrs.  Harley,  in 

„  her  answer  to  the  bill,  avers  that  she  was  a  married  woman  at  the  time 

OjJ^-*^  /V^     ^'^^^  ^*-'t^  ^^^  executed,  and  relies  on  the  plea  of  coverture.     She 

y  .    -""^^^     •   further  avers  that  she  and  her  husband,  D.  H.  Harley,  were  residents 

'[r^     Jl/^J^  *  of  and  living  in  the  state  of  Tennessee  at  the  time  said  note  was  ex- 

C^t/^^^'^^^     <^  ^yc^^   ecuted,  and  had  since  continuously  lived  in  this  state,  and  she  denies 

1  iP^      '^^  ,  jjjf  that  the  note  was  an  Ohio  contract. 

0  i/'lr*^ IjJ^'  I        The  facts  found  by  the  Court  of  Chancery  Appeals  are,  viz.:    First. 

^^     *^      I  ^        The  note  sued  on  is  a  renewal  note.     The  original  note  was  made  June 

A*^      %/^   'ij^    ^'  1891.     It  was  renewed  December  5,  1891;  renewed  again  January 

JV  ^   h>y    ~A  4,  1892 ;  and  again  December  3,  1892 ;  the  note  last  renewed  or  made 

^^^a'Jl    \  ^jA^^^^^^  being  the  one  in  suit.     Second.     Previous  to  the  execution  of  the 

^y^y      ^  *\L*A*^  ^^^t  note,  and  since  1889,  Mrs.  Harley  was  a  married  woman,  living 

(I  ^^ji^      Jb^  *'^ft  with  her  husband  continuously  iriJT^npc;<;pp      Sh^  nwnpd_Jia_j)rop- 

'       J/^^  ^^ty  ^"  the  state~of~Otii5r    ThifdnTie  weight  of  the  proof  is,  and  we 

(j/T*  ^  so  fing~Sr"a  fact,  tliat  she  signed,alj.  the  notes  in  Tennessee;  and  it  is 

practicall}^'conceded,  and,  ifnot  concede^T^^  find  the  fact  to  be,  that 

sh^^^igned  the-Bet^-sued-^onJn  Tennessee.     Fourth.  The  original  note 

was  negotiated  in  Geneva,  Ohio.     The  note  sued  on  was  received  bv 

the  bank  at  Geneva,  Ohio,  through  the  mail,  from  Chattanooga,  Tenn. 

Fifth.  It  is-u:Qnceded  that,  undejLJiie--&tatute-law__of  Ohio.  _ married 

women  arejiablejn  that  state  on  their  contracts, 

It  wTlT  be  perceived  that  the  legal  questiori-pcesfiiitgd  is  whether  \ 
married  woman,  domiciled  with  her  husbandin  Tennessee.  is_liable  on 


Ch.  6)  CAPACITY.  229 

a  note  signed  by  her  in  this  state,  but  payable  in  the  state  of  Ohio. 
Tlie  first  question,  of  course,  to  be  determined7  Ts~wFetlier,  upon  the 
facts  found,  this  is  a  Tennessee  or  an  Ohio  contract.  Says  Mr.  Tiede- 
man,  in  his  work  on  Commercial  Paper  (page  SOG) :  "It_js  not  th^ 
law  of  the  place  where  the  contract  was  signed  or  executed,  but  the 
law  of  the  p1are~wheralth£  rnntrqrt  was  cdnsummafe~d7hy  delivery^^oF" 
otherwise,  whirTi  ^nvprrr^  fh*;^  rnn<;trnrtinn_pf  the  contract  made  in  one 
state,  to  be  performed  in  another.  Thus  notes  drawn  in  one  state7 
and  delivered  and  payable  in  anotHer,  for  purchases  made  there,  are 
governed  by  the  law  of  the  latter  state,  and  are  considered  there  made ; 
for  by  delivery,  only,  the  act  of  making  is  fully  consummated."  So  it 
was  said  in  Hall  v.'Cordell,  142  U.  S.  116,  12  Sup.  Ct.  154,  35  L.  Ed. 
956 :  "But  where  there  is  nothing  to  show  that  the  parties  had  in 
view,  in  respect  to  the  execution  of  the  contract,  any  other  law  than  the 
law  of  the  place  of  performance,  that  law  must  determine  the  rights 
of  the  parties."  Hubble  v.  Morristown  Land  &  Improvement  Co.,  95 
Tenn.  585,  32  S.  W.  965.  In  2  Pars.  Cont.  586,  it  is  said:  "So  if 
one  in  New  York  orders  goods  from  Boston,  either  by  carrier  whom 
he  points  out,  or  in  the  usual  course  of  trade,  this  would  be  a  com- 
pletion in  the  making  of  the  contract,  and  it  would  be  a  Boston  con- 
tract, whether  he  gave  no  note,  or  a  note  payable  in  Boston,  or  one 
without  express  place  of  payment."  We_think  it  quite  plain  that  the 
note  in  suitj^_anLOhio  contract,  notwithgtandinglF-xvas  signed^  by  Mrs. 
Harley  in  Tenness£e,_it  Jiaving  been  delivered  and  consummated  in 
Ohio,  aiH  is  p^ayableJiLlhat  state,  as  the  place  of  perforniance.  Arm- 
strong vT^st,  112  N.  C.  59,  17  S:  ETTirSS  L.  R.  A.  188,  34  Am. 
St.  Rep.  473 ;  Milliken  v.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241. 

The  next  inquiry  is  whether  the  plea  of  coverture  to  a  note  made 
in  Ohio,  valid  and  enforceable  against  a  married  woman  in  that  state, 
is  available  in  a  suit  on  said  note  in  this  state,  where  such,  a  contract  is 
voidable  at  the  election  of  the  married  woman.  In  Story,  Confl.  Laws, 
c.  4,  §  103,  it  is  said:  "In  regard  to  questions  concerning  infancy, 
competency  to  marry,  incapacities  incident  to  coverture,  guardianship, 
and  other  personal  qualities  and  disabilities,  the  law  of  the  domicile 
of  birth,  or  other  fixed  domicile,  is  not  generally  to  govern,  but  the 
'lex  loci  contractus  aut  actus,'  the  law  of  the  place  where  the  contract 
is  made  or  the  act  done,"  or,  as  he  elsewhere  sums  it  up,  "although 
foreign  jurists  generally  hold  that  the  law  of  the  domicile  ought  to 
govern  in  regard  to  the  capacity  of  persons  to  contract,  yet  the  common 
law  holds  a  different  doctrine,  namely,  that  the  lex  loci  contractus  is 
to  govern."  Story,  Confl.  Laws,  §§  103,  241.  Chancellor  Kent,  while 
at  one  time  inclined  to  the  doctrine  of  the  civilians,  afterwards  ap- 
proved the  doctrine  which  has  just  been  quoted  from  Mr.  Story. 
2  Kent,  Comm.  233,  note,  458,  459,  and  note.  The  same  doctrine  was 
announced  by  this  court  in  Pearl  v.  Hansborough,  9  Humph.  426,  in 
an  opinion  by  Judge  Turley.  Applying  this  rule,  it  was  held  in  Mil- 
liken  V.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241  (Mr.  Justice  Gray  de- 


# 


c    ep'."g 


230  GENERAL  PROVISIONS.  '  (Part  1 

livering  the  opinion  of  the  court),  that  a  contract  of  guaranty,  signed 
by  a  married  woman,  domiciled  with  her  husband  in  Massachusetts, 
and  sent  by  mail  to  Maine,  where  it  was  accepted  and  acted  on,  was  a 
contract  made  in  the  state  of  Maine,  and,  when  sued  on  in  the  state 
of  Massachusetts,  would  be  determined  by  the  law  of  Maine.  In 
that  case  it  appeared  that  by  the  statutes  of  Maine,  in  force  at  the  date 
of  the  contract  of  guaranty,  the  contracts  of  a  married  woman  were 
valid  and  enforceable  as  if  made  by  a  feme  sole,  while  the  law  of 
Massachusetts,  as  then  existing,  did  not  allow  her  to  enter  into  a 
contract  as  surety  or  for  the  accommodation  of  her  husband.  But  it 
further  appeared  that  since  the  making  of  the  contract  sued  on,  and 
before  the  bringing  of  the  action,  the  law  of  Massachusetts  had  been 
changed  so  as  to  enable  married  women  to  make  such  contracts.  The 
court  of  Massachusetts  therefore  permitted  a  recovery  against  a 
married  woman  on  the  contract  of  guaranty  made  in  Maine.  See, 
also,  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep.  251.  But  in  Tennes- 
see the  contracts  of  a  married  woman  are  voidable,  and  will  not  be 
enforced  against  her  when  there  is  a  plea  of  coverture.  It  would  be 
a  strange  anomaly-lQ~-hold_  that  such  a__contract  made  by  a  married 
woman  nTTTennessee  would  not  be^  enforced  by  our  courts,  ^liile  the 
same  contractTTf  made  m  another  state,  would  be  valid  and-eiifprceable. 


As  stated  by-Mr.  Justice  Gray  in  Milliken  v.  Pratt,  supra:  "As  the 
law  of  another  g<-atpj^an_npit]2Pj^opP22£j^_!i'^^  ^^  px^cuted  in  this  state 
by  its  own  f orc"erbirronl y_byj:he  comity  of  this  state,  its  operation  and 
enforcement  here  may  be  reatricted  by  positive  prohibition  of  statute. 
*  *  *  It  is  possible,  also,  that  in~a~s!at^where  the  "common  law 
prevailed  in  full  force,  by  which  a  married  woman  was  deemed  in-, 
capable  of  binding  herself  by  any  contract  whatever,  it  might  be 
inferred  that  such  utter  incapacity,  lasting  throughout  the  joint  lives 
of  husband  and  wife,  must  be  considered  as  so  fixed  by  the  settled 
policy  of  the  state  for  the  protection  of  its  own  citizens  that  it  could 
not  be  held  by  the  courts  of  that  state  to  yield  to  the  law  of  another 
state  in  which  she  might  undertake  to  contract."  While  it  is  true,  as 
contended  by  counsel  in  his  very  able  argument,  that  the  tendency  of 
legislation  in  Tennessee  is  to  enlarge  the  contractual  power  of  mar- 
ried women,  yet  such  power  is  very  limited  and  circumscribed,  and  the 
settled  policy  of  this  state  is  to  declare  nugatory  contracts  made  by 
her  whenever  her  plea  of  coverture  is  interposed.  In  Bank  of  Co- 
lumbia V.  Walker,  14  Lea,  299,  it  was  held  that  the  lex  loci  contractus 
would  govern  when  not  repugnant  to  the  lex  fori.  The  court  stated 
the  rule  to  be:  "Whether  we  consider  the  subject-matter  under  the 
head  of  comity  and  its  rules,  or  under  that  of  real  and  personal  stat- 
utes and  its  rules,  either  or  both  sustain  the  position  that  the  lex  loci 
contractus  as  to  relations  and  property  rights  will  prevail  over  the  lex 
fori,  unless  the  enforcement  of  the  former  will  work  an  injury  to  the 
subjects  of  the  latter,  or  is  prohibited  by  the  laws  of  the  latter."  It 
was  further  said  that  rjgjits  and  contractg^--artskig-imdef^-the-llaws  of 


# 


Ch.    6)  CAPACITY.  231 

a  foreign  state  will  not  be  enforced  here,  except  under  the  doctrine  of 
the  comity  of  states,  and  fhaT  ttiis^docffme  neither  requires  nor  sanc- 
tions tHe~errfDTcenrent  in  the  court's  of  this" state~ of  statutory  rights 
and  contracts " arising  under  f lie  Jaws  of  a  foreign  state  which  are  re- 
pugnant to  the  pollcyLand  spirit  of  our  la^vs. 

For  the  reasons  indicated,  the  decree  of  the  Court  of  Chancery 
Appeals  is  affirmed.^ 


WOODWARD  V.  WOODWARD. 

(Supreme  Court  of  Tennessee,  1SS9.    87  Tenn.  644,  11  S.  W.  802.) 

FoLKESj  J.  This  is  a  petition  by  Rosa  P.  Woodward,  filed  in  the 
probate  court  of  Shelby  county,  against  her  guardian,  Emmet  Wood- 
ward, in  which  she  seeks  to  have  a  settlement  of  his  guardian  ac- 
counts, and  to  have  the  balance  in  his  hands  found  due  paid  over  to 
her.  She  alleges  her  domicile  and  residence  in  the  state  of  Louisiana, 
and  sets  up  and  exhibits  with  her  petition  certified  copies  of  the  pro- 
ceedings had  in  that  state,  whereby  she  has  been  emancipated  from  the 
disabilities  of  infancy,  under  and  in  pursuance  of  the  statute  of  the 
state  authorizing,  in  certain  cases,  the  emancipation  of  persons  who 
have  attained  the  age  of  18.  The  petition  alleges  that,  in  consequence 
of  such  decree,  she  is,  under  the  laws  of  the  state  of  Louisiana,  of 
full  age,  and  as  such  entitled  to  demand  and  receive  her  estate.  It 
is  shown  that  both  her  parents  are  dead ;  that  her  father  died  of 
yellow  fever,  intestate,  in  1873,  leaving  several  children,  all  of  whom 
are  now  over  21  years  of  age  except  petitioner,  and  have  received  from 
their  guardian  their  share  of  their  father's  estate;  that  defendant, 
Emmet  Woodward,  was  appointed  guardian  for  herself  and  brothers 
and  sisters  by  the  probate  court  of  Shelby  county  shortly  after  her 
father's  death ;  that  there  is  now  in  his  hands  about  $8,000  belonging 
to  her,  which  he  holds  as  such  guardian ;  that  shortly  after  her  father's 
death,  by  proceedings  duly  had  in  the  probate  court  of  Shelby  county, 
petitioner  was  adopted  by  C.  Dickman,  the  husband  of  her  maternal 
aunt,  under  and  in  pursuance  of  the  statutes  of  Tennessee  in  such  cases 
made  and  provided ;  that  such  adoption  was  with  the  consent  and  ap- 
proval of  the  defendant,  Emmet  Woodward,  her  regular  guardian ;  that 
several  years  thereafter  C.  Dickman  removed  from  the  state  of  Ten- 
nessee to  the  state  of  Louisiana  with  the  view  of  taking  up  his  perma- 
nent abode  there,  and  has  ever  since  resided  and  still  does  reside  there, 

2Accord:  Armstrong  v.  Best,  112  N.  C.  50,  17  S.  E.  14,  25  L.  R.  A.  1S8,  34 
Am.  St.  Rep.  473  (1893).  See  Freeman's  Appeal,  G8  Conn.  533,  37  Atl.  420, 
37  L.  R.  A.  4.52,  57  Am.  St.  Rep.  112  (1807). 

Concerning  capacity  of  married  women  to  contract,  see  57  L.  R.  A.  513-527; 
and  concerning  rights  and  obligations  of  married  women,  consult  85  Am.  St. 
Rep.  552-578. 


232  GENERAL  PROVISIONS.  (Part  1 

the  state  of  Louisiana  being  the  state  of  his  domicile;  that  petitioner, 
after  her  adoption,  became  a  member  of  the  family  of  C.  Dickman, 
her  adoptive  father,  and  did  remove  with  him  and  his  family  to  the 
state  of  Louisiana,  and  has  ever  since  resided  there;  that  Louisiana 
is  the  state  of  her  domicile,  and  was  at  the  time  of  the  judicial  pro- 
ceedings therein  resulting  in  her  emancipation.  She  alleges  in  her 
petition  that  it  is  her  desire,  and  to  her  interest,  to  have  and  receive 
the  estate  coming  to  her  from  her  said  father  as  aforesaid,  by  reason 
of  the  fact  that  it  is  now  in  the  hands  of  her  guardian,  only  yielding 
her  a  revenue  of  6  per  cent.,  charged  with  the  commissions,  expenses, 
and  costs  incident  to  such  guardianship,  while  she  can  readily  obtain 
a  permanent  8  per  cent,  investment  of  her  funds  in  the  state  of 
Louisiana,  where  that  rate  of  interest  is  legal,  freed  from  costs  and 
expenses  of  guardianship.  She  insists  that  the  state  of  Tennessee 
will  recognize  her  majority  as  determined  and  fixed  by  judicial  decree 
in  the  state  of  her  domicile,  and  would  recognize  as  valid  any  receipt, 
discharge,  or  acquittance  that  she  might  execute  to  her  guardian  for 
her  estate  now  in  his  hands,  and  that  the  probate  court  will  order  and 
direct  a  settlement  of  accounts,  and  the  paying  over  to  her  the  balance 
found  to  be  due,  so  that  the  said  guardian,  and  his  sureties  on  his 
official  bond,  may  be  discharged  from  all  further  liability. 

To  this  petition  the  defendant  interposed  a  demurrer,  upon  the 
ground  that  petitioner  was  still  a  minor  under  21  years  of  age;  that 
the  proceedings  had  in  the  courts  of  Louisiana  would  have  no  extra^ 
territorial  effect  by  reason  of  the  want  of  jurisdiction  in  said  courts 
over  the  estate  of  the  ward  situated  in  Tennessee;  that  the  proceedings 
had  in  Louisiana  are  unknown  to  the  laws  of  Tennessee,  and  opposed 
to  the  policy  of  Tennessee  law,  and  contrary  to  the  interests  of  the 
citizens  of  Tennessee,  and  would  therefore  not  be  recognized  in  the 
courts  of  this  state;  that  the  said  guardian  is  lawfully  in  possession  of 
said  funds  under  the  laws  of  this  state,  and  has  been  guilty  of  no' 
breach  of  duty  in  relation  thereto;  and  that  said  petitioner,  being  a 
minor,  cannot  maintain  this  action  in  her  own  name. 

The  probate  judge  sustained  the  demurrer,  and  dismissed  the  peti- 
tion.    Petitioner  has  filed  the  record  for  a'  writ  of  error  in  this  court. 

There  are  certain  general  principles  which  control  the  disposition  of 
this  case.  They  are,  in  the  main,  well  settled ;  the  difficulty  lies  in  their 
application  to  the  particular  facts  of  the  case  in  hand.  It  is  elementary 
that  "every  state  has  an  undoubted  right  to  determine  the.  status,  or 
domestic  or  social  condition,  of  persons  domiciled  within  its  territory, 
except  in  so  far  as  the  powers  in  this  respect  are  restrained  .by  duties 
or  obligations  imposed  upon  them  by  the  constitution  of  the  United 
States."  Strader  v.  Graham,  10  How.  (U.  S.)  93,  13  L.  Ed.  337. 
Again,  the  civil  status  is  governed  universally  by  one  single  principle, 
namely,  that  of  domicile,  which  is  the  criterion  established  by  law  for 
the  purpose  of  determining  the  civil  status ;  for  it  is  on  this  basis  that 
the  personal  rights  of  a  party — that  is  to  say,  the  law  which  determines 


Ch.  6)  CAPACITY.  233 

his  majority  or  minority,  his  marriage,  succession,  testacy,  and  intes- 
tacy— must  depend.     Udny  v.  Udny,  L.  R.  1  H.  L.  Sc.  457. 

It  is  not  seriously  controverted  by  counsel  for  defendant  that  the 
judicial  decree  under  which  the  disabilities  of  minority  were  removed 
in  Louisiana  had  the  same  effect  as  though,  by  direct  statute,  the  age 
of  majority  had  been  fixed  at  18,  so  far  as  the  status  of  minors  domi- 
ciled in  that  state  is  concerned ;  the  main  contention  in  this  connection 
being  that,  the  domicile  or  origin  of  petitioner  having  been  in  Ten- 
nessee, petitioner  has  acquired,  and  could  acquire,  no  domicile  in 
Louisiana  by  reason  of  her  removal  to  that  state  by  her  adoptive 
father. 

Before  considering  the  question  of  removal,  and  of  the  right  of  the 
adoptive  father  to  acquire  for  his  adopted  child  a  new  domicile,  or, 
what  is  the  same  thing,  the  right  or  privilege  of  the  adopted  child  to 
acquire  a  new  domicile  with  her  adoptive  father,  let  us  settle,  if  we 
can,  what  would  be  the  proper  disposition  of  the  case  had  the  petitioner 
been  born,  and  ever  after  domiciled,  in  the  state  of  Louisiana.  In  such 
cases  we  regard  it  as  well  settled  that,  under  unquestionable  principles 
of  private  international  law,  one  state  will  recognize  and  give  force 
and  effect  in  its  own  tribunals  to  the  legislation  of  another  state  in  so 
far  as  it  fixes  the  status  and  capacity  of  married  women  and  minors. 
This  is  frequently  spoken  of  as  a  principle  of  comity,  and,  while  it 
doubtless  has  its  origin  in  considerations  of  comity,  it  has  been  so  re- 
peatedly and  emphatically  recognized  by  the  courts  of  all  civilized  coun- 
tries that  it  is  now  thoroughly  crystallized  into  rules  and  principles  of 
private  international  law.  As  is  said  in  Ross  v.  Ross,  129  Mass.  243, 
37  Am.  Rep.  321,  in  the  elaborate  discussion  of  the  subject  by  Chief 
Justice  Gray:  "The  status  or  condition  of  any  person  with  the  in- 
herent capacity  of  succession  or  inheritance,  is  to  be  ascertained  by  the 
law  of  the  domicile  which  creates  the  status,  at  least  when  the  status 
is  one  which  may  exist  under  the  laws  of  the  state  in  which  it  is  called 
in  question,  and  when  there  is  nothing  in  those  laws  to  prohibit  giving 
full  effect  to  the  status  and  capacity  acquired  in  the  state  of  the  domi- 
cile. We  are  not  aware  of  any  case,  in  England  or  America,  in  which 
a  change  of  status  in  the  country  of  the  domicile,  with  the  formalities 
prescribed  by  its  laws,  has  not  been  allowed  full  effect,  as  to  the  capac- 
ity thereby  created,  of  succeeding  to  and  inheriting  property  in  any 
other  country  the  laws  of  which  allow  a  like  change  of  status  in  a 
like  manner,  with  a  like  effect,  under  like  circumstances."  This  prin- 
ciple is  illustrated  by  the  decree  made  in  Re  Da  Cunha,  1  Hagg.  Ecc. 
237,  where  administration  was  granted  in  England,  limited  to  the  re- 
ceipt of  the  dividend  of  a  sum  of  English  stock  to  a  Portuguese  lady, 
who,  by  the  laws  of  her  domicile,  was  emancipated  from  the  disabilities 
of  minority,  but  was,  by  the  English  law,  still  a  minor.  It  was  held 
that  she  was  entitled  to  receive  and  receipt  for  the  dividend  on  said 
stock  in  England. 


234  GENERAL  PROVISIONS.  (Part  1 

It  is  true,  as  insisted  by  counsel  for  defendant,  that  there  is  no 
elaboration  of  decision  and  of  discussion  made  by  the  judges  in  the  dis- 
position of  this  case ;  but  this  fact  in  no  manner  detracts  from  its  force 
and  effect  as  authority.  It  does  settle  and  determine  that  a  person 
of  full  age  by  the  law  of  her  domicile,  though  a  minor  by  the  laws  of 
England,  is  entitled  to  receive  and  give  a  valid  acquittance  for  property 
to  which  she  is  entitled  in  England;  and  such  receipt,  though  confined 
to  the  dividend  on  the  stock,  is  as  conclusive  of  her  right  to  act  as  a 
major  as  though  she  had  received  the  corpus  of  the  property ;  the 
dividend  being  all  that  she  was,  under  the  circumstances,  entitled  to. 
In  rule  32  of  Dicey  we  find  it  stated  that  the  capacity  of  a  person 
for  the  alienation  of  movables  depends,  so  far  as  the  question  of  in- 
fancy or  majority  is  concerned,  on  the  law  of  that  person's  domicile. 
So  in  Re  Hellmann's  Will  (reported  in  L.  R.  2  Eq.  363),  Lord  Romilly, 
the  Master  of  the  Rolls,  authorized  the  payment  of  a  legacy  to  a  minor 
aged  18,  because  she  was  of  age  according  to  the  laws  of  Hamburg, 
where  she  was  domiciled.  The  case  is  stated  thus :  "Hellmann,  being 
domiciled  in  England,  by  his  will  bequeathed  the  sum  of  £250  to  each  of 
the  two  children  of  Charlatt  Helsig.  These  children  were  a  daughter 
aged  18,  and  a  son  aged  17,  both  residents  and  domiciled  in  Hamburg. 
According  to  the  law  of  Hamburg  girls  become  of  age  on  completing 
their  eighteenth  year;  boys  on  completing  their  twenty-second/'  The 
Master  of  the  Rolls  said :  "I  am  of  opinion  that  the  legacy  to  the  daugh- 
ter, who  is  of  age  according  to  the  law  of  Hamburg,  may  be  paid  on 
her  receipt.  The  legacy  to  the  son  may  be  paid  on  his  attaining  full 
age  according  to  English  law,  or  according  to  the  law  of  Hamburg, 
whichever  first  happens." 

It  is  suggested,  however,  in  response  to  this  case,  that  the  fact  that 
the  property  going  to  the  minor  was,  by  the  will,  given  to  the  minor 
by  name,  is  indicative  of  the  purpose  to  have  the  same  paid  over  to  the 
minor  according  to  the  law  of  the  place  of  her  domicile,  where  her 
majority  was  reached  at  an  earlier  age  than  in  England,  and  that  for 
this  reason  it  should  not  be  controlling  in  a  case  where  the  property 
was  inherited  generally,  in  one  state,  where  21  is  the  lawful  age,  and 
the  full  age  at  an  earlier  period  is  had  by  reason  of  the  domicile  in  an- 
other state. 

We  cannot  appreciate  the  force  of  this  suggestion.  The  court,  in 
disposing  of  the  case,  indicates  in  no  wise  that  its  judgment  or  conclu- 
sion was  influenced  by  any  such  consideration,  and,  so  far  as  the  case 
goes,  it  is  merely  an  announcement  and  application  of  the  general  prin- 
ciples contended  for  by  petitioner.  Had  any  special  regard  been  given 
to  the  fact  that  property  was  devised  by  will,  instead  of  passing  by  law, 
it  would  have  been  more  reasonable  to  have  supposed  that  the  testator 
intended  it  to  be  paid  over  according  to  the  law  of  his  own  domicile, 
requiring  guardians  to  receive  and  receipt  for  the  fund  devised  to  mi- 
nors. That  the  court  gave  no  attention  to  such  considerations  is  shown 
by  the  order  made  with  reference  to  the  boy,  in  directing  that  the  fund 


Ch.  6)  CAPACITY.  235 

should  be  paid  to  him  when  he  attained  his  majority  either  under  the 
law  of  England  or  under  the  law  of  his  domicile,  whichever  first  hap- 
pened.    This  court  has  recognized  the  doctrine  contended  for  by  peti- 
tioner in  the  case  of  Roberson  v.  Queen,  decided  at  Nashville,  and  re- 
ported in  87  Tenn.  445,  11  S.  W.  38,  3  L.  R.  A.  214,  10  Am.  St.  Rep. 
690,  where  it  is  held  that  the  judicial  proceedings,  under  the  laws  of    _. 
the  state  of  Kentucky,  emancipating  married  women   from  the  dis-    ., 
ability  of  coverture,  would  be  recognized  and  enforced  in  this  state  to     { 
the  extent  of  allowing  an  action  to  be  brought  and  maintained  in  the     n 
courts  of  this  state  against  such  married  woman,  on  a  note  made  by 
her  in  the  state  of  Kentucky  as  surety  for  her  husband,  clearly  recog- 
nizing that  her  status  as  a  person  sui  juris,  fixed  b}^  judicial  proceed-- 
ings  in  the  state  of  her  domicile,  Vv^ould  have  full  force  and  effect  in 
this  state.    To  the  same  effect  is  the  text  in  Wharton's  Conflict  of  Laws 
(section  114),  where  the  learned  author  says:     "A  foreigner  who  is 
capable  of  business  at  his  domicile  must  be  recognized  as  so  capable  by 
our  laws,  even  though,  if  domiciled  among  us,  he  would  be  incapable." 

A  near  analogy  to  the  present  case,  with  reference  to  the  recognition 
in  one  state  of  the  status  fixed  by  the  law  of  the  domicile,  is  to  be  found 
in  the  case  of  children  born  out  of  wedlock,  but  made  legitimate  after- 
wards, according  to  the  laws  of  their  domicile,  by  the  subsequent  mar- 
riage of  their  parents.  They  are  deemed  everywhere  legitimate  for 
the  purposes  of  inheritance,  etc.  Andros  v.  Andros,  L.  R.  24  Ch.  Div. 
637 ;  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669 ;  Scott  v.  Key,  11 
La.  Ann.  232.  This  doctrine  is  generally  subject  to  exception  con- 
cerning real  estate,  which  is  governed  by  the  lex  rei  sitae.  The  law  of 
divorce  also  furnishes  a  close  analogy.  Thus  a  divorce,  in  a  foreign 
jurisdiction,  for  a  cause  which  is  not  competent  in  the  state  of  mar- 
riage, is  recognized  as  valid  in  the  latter  if  the  former  had  jurisdiction 
of  the  parties,  for  the  purposes  of  the  suit.  Sewall  v.  Sewall,  122 
Mass.  158,  23  Am.  Rep.  299;  Clark  v.  Clark,  8  Cush.  (Alass.)  385; 
Barber  v.  Root,  10  ]\Iass.  260.  In  Stephens  v.  McFarland,  8  Ir.  Eq. 
444,  we  have  a  case  where  a  minor  was  insolvent  in  South  Australia, 
by  the  laws  of  which  a  minor  could  be  so  adjudged.  His  assignee  at- 
tempted in  Ireland  to  obtain  the  real  and  personal  property  that  passed 
to  him  under  his  father's  will.  The  bill  was  demurred  to,  and  the  de- 
murrer overruled ;  the  assignee  being  adjudged  to  have  the  title  of  the 
property  coming  to  the  insolvent  minor.  •    qjo^a^^ 

The  converse  of  the  present  case  is  found  in  Kohne's  Estate,  1  Pars.  Qj^  ^^'^^^*^^^^ ^ 
Eq.  Cas.  (Pa.)  399.    The  direct  point  was  that  the  power  of  attorney  \U/^o^    ^^^^^^^^ * (i^tu 
of  a  minor,  who  had  not  reached  her  majority  by  the  law  of  her  domi-      .    /mt^j"*^^   *^ 
cile,  would  not  be  recognized  in  Pennsylvania,  although,  by  the  law  of    */     -.J  Va~  '  '^ 

opinion   said,   among  other  things,   "that,   according  to   our  law,   in     cv*^   ^^T^'***'   w 
common  with  those  of  the  civilized  world,  questions  of  minoritv  and      .^u^     t^  l< 


Pennsylvania,  she  was  then  of  full  age.     The  judge   delivering  the  ^yC' 

mined  according  to  the  laws  of  the  country  in  which  the  alleged  mi-      •C^-**'*^'^ 


majority  in  all  controversies  respecting  personal  estate  are  to  be  deter- 


\^» 


236  GENERAL  PROVISIONS.  (Part  1 

nor  held  his  actual  domicile,  whether  natural  or  acquired."  See  Story, 
Confl.  Laws,  §§  64-66,  69.  Pothier  states  the  rule  thus :  "The  change 
of  domicile  delivers  persons  from  the  empire  of  the  laws  of  the  place 
they  have  quitted,  and  subjects  them  to  those  of  the  new  domicile 
they  have  acquired."  Poth.  Cout.  d'Orleans,  c.  1,  art.  1,  note  13. 
Mr.  Justice  Story,  after  presenting  the  several  views  of  some  of 
the  civil  law  writers  who  discuss  the  subject,  says,  at  section  71: 
"Boullenois,  himself,  does  not  hesitate  to  declare  the  general  principle 
to  be  incontestable  that  the  law  of  the  actual  domicile  decides  the  state 
and  condition  of  the  person,  so  that  a  person,  by  changing  his  domicile, 
changes  at  the  same  time  his  condition."  The  effect  of  the  statute  of 
Louisiana,  under  which  the  disabilities  of  this  minor  were  removed, 
has  been  adjudged  by  the  highest  court  of  that  state.  Thus,  in  Proctor 
V.  Hebert,  36  La.  Ann.  250,  it  is  said:  "It  places  the  minor,  thus  freed, 
on  the  same  plane  with  the  major,  and  invests  him  with  identically 
the  same  rights,  and  subject  to  equal  responsibilities.  In  other  words, 
instead  of  leaving  him  subject  to  the  operation  of  the  general  law, 
and  making  him  wait  until  he  is  twenty-one  years  of  age,  it  virtually 
and  in  effect  fixed  and  established  his  majority  at  an  earlier  period 
of  life — that  is,  at  any  time  when  he  shall  have  passed  the  age  of  eigh- 
teen years."  So  fully  is  his  majority  established  that  he  is  capable 
of  filling  the  office  of  administrator,  just  as  if  21  years  of  age.  Suc- 
cession of  Lyne,  12  La.  Ann.  155.  Under  this  legislative  emancipa- 
tion the  party's  disabilities  of  infancy  are  all  removed.  Wilson  v. 
Craighead,  6  Rob.  (La.)  429 ;  Succession  of  Lyne,  12  La.  Ann.  155 ; 
Proctor  V.  Hebert,  36  La.  Ann.  250.  He  is  estopped  by  it,  and  those 
dealing  with  him  need  look  no  further  than  his  free  papers.  Al- 
lison V.  Watson,  36  La.  Ann.  616.  The  case  of  State,  to  Use  of  Gil- 
breath  v.  Bunce,  65  Mo.  349,  urged  by  counsel  for  defendant  as  fur- 
nishing strong  authority  for  their  contention  here,  is  not,  in  our  opin- 
ion, entitled  to  the  weight  insisted  upon.  The  case  is  extremely  brief 
in  its  discussion,  and  assumes  the  very  point  in  controversy,  without 
reference  to  the  various  authorities  bearing  thereon.  Mr.  Wharton, 
in  his  work  on  Conflict  of  Laws,  at  section  114,  says  of  this  case  that 
it  is  "exceptional"  and  "arbitrary" ;  moreover,  it  may  be  distinguished 
from  the  case  now  before  us  in  this,  that  the  proceedings  in  Arkansas, 
the  state  of  domicile  of  the  minor,  seems  to  have  had  for  its  object 
the  emancipation  of  the  minor  only  pro  tanto — that  is  to  say,  the  mi- 
nor's disabilities  were  removed  to  the  extent  of  authorizing  him  to  go 
into  the  state  of  Missouri,  and  there  collect  and  receipt  for  the  par- 
ticular fund  in  the  hands  of  his  Missouri  guardian.  It  was  not  an  out 
and  out  removal  of  all  the  disabilities  of  minority,  but  a  special  commis- 
sion, authorizing  an  incursion  into  the  state  of  Missouri  for  the  pur- 
pose of  receiving  and  receipting  for  a  particular  fund. 

The  Arkansas  statute  is  not  before  us,  and  we  only  know  its  con- 
tents by  the  statement  thereof,  found  in  this  Missouri  case,  from  which 
it  is  apparent  that  it  differs  widely  from  the  broad  and  comprehensive 


Ch.  6)  "        CAPACITY.  237 

proceedings  in  Louisiana,  whereby  the  petitioner  in  the  case  at  bar 
was  thoroughly  and  entirely  emancipated  from  all  disabilities,  and  her 
status  fixed  as  a  major  in  Louisiana,  from  which  she  claims  the  right 
to  have  her  status  recognized  in  other  sovereignties. 

So  far  we  have  traveled  a  broad  and  well-defined  road,  from  which 
there  is  no  variableness  nor  shadow  of  turning,  every  step  of  which  is 
marked  by  well-considered  authority  of  the  highest  repute. 

[The  learned  justice  here  discussed  the  question  of  petitioner's  domi- 
cile and  concluded  that  it  was  in  Louisiana  at  the  time  of  the  judicial 
proceedings  therein  resulting  in  her  emancipation.] 

With  the  question  of  change  of  domicile  settled,  we,  upon  author- 
ity and  principle,  hold  that  she  has  the  right  to  receive  from  her  guard- 
ian in  the  state  of  Tennessee  funds  coming  to  her  in  consequence  of 
her  majority  by  the  law  of  her  domicile.  In  this  connection  it  may 
be  Temembered  that  a  capacity  to  take  and  to  have  dififers  from  a 
capacity  to  do  and  contract ;  in  short,  "a  capacity  to  hold,  from  a 
capacity  to  act,"  as  was  said  by  Mr.  Chief  Justice  Gray  in  the  case 
of  Ross  v.  Ross,  supra. 

We  do  not  understand  that,  with  the  matter  of  removal  and  adop- 
tion out  of  the  way,  there  is  any  serious  question  that  a  person  of 
full  age  in  Louisiana  could  receive  and  receipt  for  property  belong- 
ing to  such  minor  in  this  state.  The  receipt  in  such  case,  accom- 
panied with  a  discharge,  is  a  contract.  There  are  any  number  of 
cases  holding  that  persons  who  are  of  full  age  by  the  law  of  their 
domicile  will  be  held  bound  by  any  contracts  made  by  them  in  anoth- 
er state,  where  they  would  not  otherwise  be  of  age  under  the  laws  of 
such  other  state.  It  is  true  that  it  has  been  held  that,  where  persons 
are  of  age  in  the  state  where  they  make  a  contract,  though  not  of 
full  age  in  the  state  of  their  domicile,  they  will  be  held  bound  by  their 
contracts  in  the  state  where  the  contracts  were  made.  This  appar-  qj  oat^ 
ent  exception  to  the  general  rule  that  the  law  of  domicile  fixes  ca-  "     -   -/.U.  1^ 

pacity  is  predicated  upon  the  idea  that  every  state  must  protect  its  '^■^f^-'^*'^''^^ 
own  citizens  from  the  wrongful  acts  of  the  subjects  of  other  states;  'i  ^^^  »-<*^^ 
and,  while  it  will  always  recognize  capacity,  as  furnished  by  the  law  uluJ^*>l*^    ok*^^ 
of  domicile,  it  will  not  always  recognize  incapacity  where  the  person  ^  l/-vr.*,.YV«^'*' 
is  _ca£able^  under  the  law  of  the  state  where  the  contract  is  made,    -^^^^.jUrt^ ,   3^ 
where  it  w^ould  affect  injuriously  our  own  citizens.     Authorities  up-  f^^j^.^  ^jiy^  -»^-^^ 
on  this  aspect  of  the  case  might  be  multiplied,  but  the  law,  as  here      v^.^^ a  "flyiu  < 
stated,  is  too  w^ell  settled  to  render  such  citations  necessary.  '*^  Af"^  • 

It  only  remains  to  determine  whether  there  is  anything  in  the  stat-  ^^-^«>-  ;  ^y*^^^i^^  J 
utes  of  this  state  requiring  guardians  to  hold  funds  in  their  hands  £.,>- *^'^<i»-*«-*'^>-^'^ 
until  the  ward  attains  21  years  of  age  that  militates  against  the  en- 
forcement of  the  conclusions  we  have  already  reached.  On  behalf 
of  the  defendant  it  is  insisted  that  the  language  of  the  statute  in  the 
regard  above  mentioned  is  as  imperative  as  would  be  a  provision  in 
the  will,  or  other  instrument  creating  an  estate,  wherein  it  was  di- 
rected that  the  trustees  should  hold  the   fund  until  the  beneficiary 


238  GENERAL  PROVISIONS.  (Parti 

should  attain  the  age  of  21  years.  It  would  be  competent  for  the 
legislature  to  pass  an  act  impressing  such  a  trust  upon  funds  in  this 
state,  without  regard  to  the  laws  of  the  state  of  the  domicile  of  the 
ward.  But  does  the  statute  in  question  do  more  than  provide  for 
wards  domiciled  in  our  own  state?  Is  it  aimed  at  non-resident  wards? 
We  do  not  so  read  nor  understand  our  statute.  We  consider  that  the 
reference  to  the  age  of  21  years  is  for  Tennessee  wards,  and  is  not 
for  the  purpose  of  fixing  arbitrarily  that  particular  age  at  which  the 
guardian  shall  settle  with  wards  domiciled  in  other  states,  but  that 
it  uses  that  age  in  consequence  merely  of  the  fact  that,  under  the 
law  of  this  state,  a  party  is  a  minor  until  that  age  is  attained,  and 
that  the  statute,  therefore,  must  be  read  as  though  it  had  merely  pro- 
vided that  the  guardian  should  settle  when  the  ward  attained  his  ma- 
jority. The  statute  referred  to  by  coimsel  for  defendant  as  fixing 
the  age  of  21  as  the  earliest  period  at  which  a  Tennessee  guardian 
can  be  called  on  to  settle  does  not  declare  a  trust  in  the  hands  of  all 
guardians  until  the  ward  attains  21,  as  is  argued.  This  statute  is 
to  be  found  at  section  3419,  and  is  as  follows :  "Every  minor,  up- 
on attaining  the  age  of  twenty-one  years,  and  every  female  ward 
when  she  is  married,  upon  the  receipt  of  money  or  estate  due  either, 
shall  receipt  the  guardian  for  the  same  in  the  same  manner  as  leg- 
atees, distributees,  or  others  interested  in  the  distribution  of  estates." 
The  next  section  provides  for  the  keeping  by  the  clerks  of  the  coun- 
ty court  of  well-bound  books  in  which  such  receipts  shall  be  record- 
ed. These  are  the  only  sections  in  article  9,  c.  2,  of  the  Code.  The 
title  of  the  article  is  "Ward's  Receipt  on  Coming  of  Age  or  Mar- 
riage." Here  is  certainly  nothing  showing  an  imperative  policy  or 
any  other  policy  that  this  state  proposes  to  set  up  for  guardians  in 
this  state  as  to  funds  in  their  hands  belonging  to  wards  everywhere. 
It  is  merely  a  provision  aimed  at  and  operating  upon  the  ward,  re- 
quiring him  to  give  a  receipt  "on  coming  of  age,"  "or  marriage,"  and 
providing  for  the  recording  of  such  receipt.  The  word  "twenty-one" 
happens  to  be  used  .in  the  statute  merely  because  that  is  the  age  of 
majority  at  common  law,  which  is  the  law  of  this  state  on  that  sub- 
ject, there  being  no  statute  declaring  it ;  and  the  word  "twenty-one" 
is  used  as  synonymous  with  "full  age"  or  "coming  of  age,"  as  shown 
by  the  title  to  the  article,  and,  as  is  further  shown  by  section  3358, 
under  the  same  chapter,  the  title  to  which  is  "Guardian  and  Ward," 
and  article  1,  the  title  of  which  is  "Who  may  be  Guardian,"  where 
it  enacts  that  such  person,  who  fails  to  deliver  up  efifects  of  the  ward 
"upon  majority  or  marriage,"  is  guilty  of  a  misdemeanor;  showing 
that  the  terms  are  used  convertibly.  This  is  too  plain  for  citation 
of  authority  or  rules  of  construction,  but  it  happens  that  in  Re  Kohne's 
Estate,  1  Pars.  Eq.  Cas.  399,  we  have  an  adjudication  that  the  terms 
"arrival  at  twenty-one  years"  and  "arrival  at  full  age"  are  synony- 
mous, and  convey  to  the  mind  identically  the  same  idea.  So  that  there 
is  nothing  in  our  statute  fixing  21  years  as  the  age  at  which  a  guard- 


Ch.  6)  CAPACITY.  239 

ian  shall  settle  with  wards  who  are  of  full  age  in  the  state  of  their 
domicile.  The  only  provisions  on  the  subject  are  the  two  referred 
to,  to  wit :  that  the  ward,  on  coming  of  age,  shall  give  a  receipt,  and 
that  if  a  guardian  fails  to  turn  over  property  to  his  ward  at  his  "ma- 
jority" or  "her  marriage,"  he  is  guilty  of  a  misdemeanor.  So  that 
under  our  law  he  is  required  to  settle  when  the  ward  is  of  full  age,  and, 
under  the  jus  gentium,  the  petitioner  is  of  full  age  and  he  must  settle. 
The  enforcement  of  this  rule  of  private  international  law  only  requires 
that  the  common-law  age  of  majority  of  this  state  shall  give  way  to 
the  age  of  majority  as  fixed  by  the  law  of  the  domicile  of  the  ward, 
unless  there  be  something  in  our  statutes  or  decisions  which  are  to 
be  understood  as  indicative  of  a  policy  or  purpose  to  enforce  the  par- 
ticular law,  without  regard  to  the  rules  of  private  international  law 
which  asks  its  suspension  in  favor  of  the  lex  domicilii. 

There  is  nothing  in  our  law  on  the  subject  in  hand  upon  which  can  be 
predicated  the  demand  that  the  jus  gentium,  shall  not  prevail.  Under 
the  view  we  take  of  the  law  governing  this  case,  the  petitioner  has 
attained  her  majority  under  the  laws  of  the  state  of  her  domicile,  and 
this  court,  recognizing  the  status  of  capacity  as  thus  fixed  by  the  law 
of  her  domicile,  will  declare  her  of  full  age,  so  far  as  her  right  to  de- 
mand and  receive  from  any  one  having  property  in  their  possession 
belonging  to  her,  to  which  she  would  be  entitled  upon  attaining  full 
age  in  this  state.  In  other  words,  being  of  full  age  in  Louisiana,  the 
state  of  her  domicile,  she  is  of  full  age  in  this  state,  under  the  principles 
of  private  international  law  obtaining  in  such  cases. 

Let  the  judgment  be  reversed,  and  the  case  remanded  for  further 
proceedings.^ 

3Accord:  Hiestand  v.  Kuns.  8  Blackf.  find.)  34.5.  46  Am.  Dec.  481  (1847). 
The  domicile  of  origin  was  applied  in  Barrera  v.  Alpuente,  6  Mart.  (N.  S.)  69, 
17  Am.  Dec.  179  (1827).  For  the  purpose  of  the  statute  of  limitations,  major- 
ity has  been  determined  with  reference  to  the  lex  fori.  Burgett  v.  Williford, 
56  Ark.  187.  19  S.  W.  750,  35  Am.  St.  Rep.  96  (1892). 

The  substantive  law  applicable  to  the  right  in  question  will  determine  ca- 
pacity for  rights.  Christopher  v.  Norvell,  201  U.  S.  216,  26  Sup.  Ct.  502,  50 
L.  Ed.  732  (1906)  capacity  to  become  a  shareholder  in  a  corporation ;  Schlut- 
er  V.  Bowery  Sav.  Bank,'  117  N.  Y.  125,  22  N.  E.  572,  5  L.  R.  A.  541,  15  Am. 
St.  Rep.  494  (1889),  capacity  to  be  a  trustee.  And  the  power  of  disposition 
over  certain  rights.  First  Nat.  Bank  v.  National  Broadway  Bank,  156  N.  T. 
459,  51  N.  E.  398,  42  L.  R.  A.  139  (1898). 

A  disability  imposed  by  way  of  penalty  has  no  extraterritorial  effect.  Com- 
monwealth V.  Green,  17  Mass.  515  (1822).  Nor  a  so-called  "artificial  inca- 
pacity" resulting  from  the  judgment  of  a  court.  Gates  v.  Bingham,  49  Conn. 
275  (1881)  ;  Worms  v.  De  Valdor,  49  L.  J.  Ch.  N.  S.  261  (1880)  ;  In  re  Se- 
lot's  Ti-usts,  [1902J  1  Ch.  488.  Contra:  France.  Trib.  Seine,  Jan.  19,  1889  (17 
Clunet,  870) ;  Comp.  App.  Lyon,  April  30.  1907  (4  Darras,  630). 

Continental  Daw. — The  national  law  of  the  parties  governs  with  respect 
to  capacity  to  act.  France,  article  3,  Civ.  Code;  Trib.  Tunis,  Jan.  25,  1906 
(35  Clunet,  161),  Itahj.  article  6,  Civ.  Code.  See  art.  58,  Com.  Code.  Ger- 
nianij,  article  7,  Law  Intr.  Civ.  Code.  A  foreigner  who.  after  reaching  the 
age  of  majority,  acquires  the  German  nationality,  will  retain  the  status 
of  a  major,  though  he  would  not  be  of  age  under  the  German  municipal  law. 
Article  7,  Law  Intr.  Civ.  CX)de. 

In  France  the  lex  loci  has  been  substituted  for  the  national  law  where 
the  foreigner  concealed  his  nationality.     App.  Paris,  Feb.  8,   1883  (S.   1883, 


240  GENERAL  PROVISIONS.  (Part  1 

/*  SELL  V.  MILLER. 


.^♦'^^' 


(Supreme  Court  of  Ohio,  1860.     11  Obio  St.  331.) 


^^' 


^^■^    ♦'(/''      By  the;  Court.    Where  a  married  woman,  over  eighteen  but  under 

g    H  '^    ^y^^*^'  twenty-one  years  of  age,  has  her  domicile,  and  joins  with  her  husband 

^^     p  '^    f-^  in  the  execution  of  a  mortgage,  within  a  foreign  jurisdiction,  where 

(/*^  K/          ^  1  ^^  ^&^  o^  majority  is  fixed  at  twenty-one  years,  upon  real  estate  situ- 

i^           j'^  y/*^  ate  in  Ohio,  held,  that  such  morgage  is  not  invalid  for  want  of  capaci- 

.^•*  »y^'fl''  ^y  °^  ^^^  P^^^  ^°  contract;    the  capacity  to  contract,  in  respect  to  im- 

n*  V^    ^  ■'■  movables,  being  governed  by  the  law  of  the  situs,  and  not  by  the  law 

^^   (iP^ '  of  the  domicile.                                                   v  .  • 

J^  Motion  overruled.*        (*^  dr^<u^  ^u/^iO^—  . 

j^  AUGUSTA  INS.  &  BANKING  CO.  v.  MORTON. 

,j^       Qy  '  (Supreme  Court  of  Louisiana,  1848.     3  La.  Ann.  417.) 

\/^^^ a<y^  EusTis,  C.  J.    This  suit  was  instituted  on  two  promissory  notes,  exe- 

cuted by  the  defendant  and  his  wife,  jointly,  and  secured  by  mortgage 
on  immovable  property  situated  in  Louisiana.  The  defendants  were 
domiciliated  in  Maryland,  where  they  continued  to  reside.  The  suit 
against  them  was  commenced  by  attachment,  under  which  the  mort- 
gaged property  was  attached.  There  was  judgment  against  the  defend- 
ants with  privilege  of  mortgage  on  the  property  attached,  and  they 
have  appealed. 

The  appellants  have  contended  before  us  in  argument :  (1)  That  no 
property  of  the  husband  having  been  attached,  no  judgment  could  be 
lawfully  rendered  against  him.  (2)  That  Mrs.  Morton,  having  bound 
her  property  and  not  herself  personally,  judgment  could  not  be  render- 
ed against  her,  but  only  against  her  property.  (3)  That  a  married 
woman  cannot  bind  her  immovable  property  in  this  state  as  surety  for 
her  husband's  debts ;  and  that  the  mortgage  being  invalid,  no  judg- 
ment should  have  been  rendered  against  her  property. 

The  first  proposition  is  certainly  tenable.  No  property  of  the  hus- 
band having  been  attached,  no  judgment  can  be  rendered  against  him. 
Hid  appearance  in  court  by  a  curator  must  be  only  considered  as  as- 
sisting his  wife  in  the  proceedings. 

It  is  established  that  a  married  woman  in  Maryland,  where  these 

2,  169).  Or  where  the  other  contracting  party  was  ignorant  of  his  national- 
ity. Cass.  Jan.  16,  1861  (D.  1861,  1,  193);  App.  Bordeaux,  April  11,  1906 
(33  Clunet,  1119);  App.  Lyon,  April  30,  1907  (35  Qunet.  146).  And  in  Ger- 
many a  foreigner  will  be  held  liable  with  respect  to  all  legal  transactions 
entered  into  in  Germany  other  than  those  relating  to  foreign  realty  or  those 
falling  within  the  family  law  or  the  law  of  succession,  if  he  has  capacity 
according  to  German  law.  Article  7,  Law  Intr.  Civ.  Code.  See,  also,  article 
84,  Bills  of  Exchange  Act. 

4  This  doctrine  was  already  taught  by  the  Dutch  jurist,  Paul  Voet,  De  Stat- 
utis,  p.  138. 


Ch.   6)  CAPACITY.  241 

contracts  were  made,  may  become  responsible  for  the  debts  of  her 
husband,  so  as  to  bind  property  settled  on  her  for  her  separate  use, 
but  not  so  as  to  bind  herself  personally ;  and  hence  it  is  inferred  that 
no  judgment  could  be  rendered  against  her  personally. 

The  question  as  to  the  validity  of  the  mortgage  granted  by  i\Irs. 
Morton  to  secure  the  debt  of  her  husband  controls  the  case,  and  re- 
duces the  point  raised  as  to  the  personal  effect  of  the  judgment  to  a 
mere  matter  of  form. 

The  district  judge  thought  that  the  ground  on  which  the  mortgage 
was  attempted  to  be  invahdated  was  a  matter  of  personal  disability, 
and  depended  exclusively  on  the  law  of  the  domicile  of  the  party  grant- 
ing it.  The  argument  before  us  has  been  principally  directed  to  this 
question,  whether  the  validity  of  the  mortgage  is  to  be  tested  by  the 
laws  of  this  state,  or  those  of  Maryland. 

The  article  of  the  Code  which  provides  that  the  wife  cannot  bind  her- 
self for  the  debts  of  her  husband,  according  to  the  doctrine  of  the 
civilians,  is  a  personal  statute.  It  is  founded  exclusively  on  the  per- 
sonal relation  between  husband  and  wife,  resulting  from  marriage  un- 
der our  laws,  and  of  course  is  confined  in  its  operation  to  married  per- 
sons within  our  jurisdiction.  True,  it  establishes  an  incapacity  to  con- 
tract, but  this  incapacity  is  merely  relative,  and  it  is  settled  by  our 
jurisprudence  that  a  wife  cannot  be  relieved  from  the  effect  of  a  con- 
tract by  which  she  became  the  surety  for  her  husband,  if  the  debt  itself  fl^^j^^^rv 
inured  to  her  benefit.  The  disability  to  contract  exists  only  in  a  cer-  ^^j-X»^  ^^'~^- 
tain  contingency,  and  that  contingency  is  strictly  personal.     The  inca-  .l*>»,^-JL 

pacity  of  a  married  woman  to  contract  is  of  the  same  character  as  that  '^'t^  •^'-t*^*;^-!^^ 
of  a  minor,  and  the  laws  creating  those  incapacities  have  always  been  ^^xti^AXf^. 
classed  among  those  which  are  called  personal.     This  article  does  not     C^^i^^^jx^  w  Ji*^*tF^ 
even  purport  to  affect  the  immovable  property  of  married  women.    Its 
operation  upon  such  property  is  only  indirect,  as  all  property  is  aft'ect- 
ed  by  laws  relating  to  contracts.     It  renders  voidable  contracts  made 
by  married  women  in  certain  cases,  by   reason  of  the  consideration 
which  it  holds  to  be  in  conflict  with  the  relations  of  husband  and  wife. 
It  has  no  one  characteristic  of  what  is  considered  in  jurisprudence  as  a 
real  statute.    Those  laws  are  real,  in  contradistinction  to  personal  stat- 
utes, which  regulate  directly  property,  without  reference  to  the  condi- 
tion or  the  capacity  of  its  possessor.     The  distinction  between  these 
classes  of  laws,  though  their  application  is  in  many  cases  difficult,  ap- 
pears to  us  to  be  obvious.    1  Duranton,  §§  79,  80. 

The  contract  entered  into  in  the  present  instance  bound  the  property 
of  the  wife  under  the  law  of  Maryland,  where  the  contract  was  made, 
and  where  the  husband  and  wife  are  domiciliated.  The  act  of  mort- 
gage is  valid  in  point  of  form.  The  property  mortgaged  was  not  dotal, 
and  she  would  have  had  a  right  to  sell  or  mortgage  it,  with  the  consent 
of  her  husband,  in  all  but  certain  excepted  cases,  if  her  domicile  had 
been  in  Louisiana.  If  there  be  no  objection  to  the  validity  of  this  mort- 
gage except  that  resulting  from  her  incapacity  as  a  married  woman, 

LOB.CONF.L.— 16 


242  GENERAL  PROVISIONS.  (Part  1 

we  find  no  just  ground  for  declaring  it  to  be  invalid.  It  conflicts  with 
no  law  of  the  State,  and  there  is  no  reason  of  comity  which  would 
authorize  a  court  in  Louisiana  to  relieve  the  wife  from  its  effect.  It 
interferes  with  no  real  statute;  and  the  personal  statute  does  not  reach 
it,  by  reason  of  the  person  not  being  subject  to  our  jurisdiction  and 
unaffected  by  our  laws. 

Suppose  that  by  the  laws  of  Maryland  the  age  of  twenty  years  w-as 
fixed  as  that  of  majority,  and  a  person  domiciliated  in  that  state,  above 
that  age  and  not  twenty-one  years  old,  should  sell  real  estate  in  Louisi- 
ana, he  could  not  be  aided  by  our  courts  in  setting  aside  the  sale  after- 
wards on  the  ground  of  his  minority.  The  answer  to  such  a  pretension 
would  be,  as  in  this  case.  The  disability  resulting  from  the  condition 
of  persons  is  personal,  and  contracts  valid  at  the  place  of  domicile,  are 
valid  without  reference  to  the  situation  of  the  property,  so  far  as  the 
capacity  of  the  party  to  contract  is  concerned.  Merlin,  Rep.  verbis 
Statut,  Majorite,  Autorisation  maritale;  Sirey,  Rep.  19,  2,  140,  case 
of  Morris;  Traite  des  Personnes,  par  Proudhon,  c.  5,  §  1;  Mer- 
chants' Bank  of  Baltimore  v.  Bank  of  United  States,  2  La.  Ann.  659. 

We  have  examined  with  care  the  authorities  cited  in  the  learned  ar- 
gument, submitted  by  the  counsel  for  the  defendants.  A  review  of 
them  in  detail  would  extend  our  observations  beyond  the  length  to 
be  observed  in  judicial  opinions.  The  counsel  contends  that  the  law  of 
]\Iaryland,  by  which  a  married  woman,  though  generally  incapacitated 
to  make  contracts,  is  enabled  to  bind  her  property  for  her  husband's 
debts,  is  a  real  statute,  and  applies  to  property  exclusively  within  the 
jurisdiction  of  that  state.  But  we  understand  the  right  of  the  wife  to 
bind  her  separate  property  for  her  husband  to  be  founded  on  a  rule 
of  equity,  which  regards  her  as  a  feme  sole  in  all  cases  in  which  she, 
without  any  fraud  or  unfair  advantage,  and  with  a  clear  intention  of 
affecting  her  separate  property,  enters  into  an  agreement  respecting  it ; 
and  this  view,  which  a  court  of  equity  enforces  in  relation  to  her  sepa- 
rate property,  is  independent  of  its  character  and  situs,  and  removes 
every  disability  in  respect  to  it,  so  far  as  a  court  of  equity  is  called 
to  act  upon  it. 

It  is  not  pretended  that  our  conclusions  on  this  question  harmonize 
with  all  that  has  been  written  or  decided  on  this  difficult  subject;  but 
our  aim  has  been  to  adopt  none  which  from  their  generality  would  con- 
flict with  any  recognized  principle  of  jurisprudence,  and  we  think  we 
can  safely  rest  the  decision  of  the  case  on  the  authority  of  Merlin  and 
Pothier.    Merlin  verbo  Senatus-consult.    Veil.  Pothier,  Ob.  389. 

It  is  therefore  ordered  that  the  judgment  of  the  district  court  be  re- 
versed, and  that  the  plaintiffs  recover  judgment  against  the  defendant 
Mary  Ann  Morton,  wife  of  George  C.  Morton,  to  be  paid  exclusively 
out  of  the  property  mortgaged,  for  the  sum  of  $24,824.82,  with  inter- 
est at  six  per  cent,  per  annum  on  $12,234.22  from  6th  March,  1843, 
and  on  the  balance,  $12,590.59,  from  6th  September,  1843,  and  that 
the  property  and  rights  attached  in  this  suit,  and  described  in  the  act 


Ch.  6)  CAPACITY.  243 

of  mortgage  on  file  therein,  be  sold  by  the  sheriff  in  satisfaction  of  this 
judgment,  with  costs  of  the  court  below;  the  plaintiffs  to  pay  the 
costs  of  this  appeal. 


THOMSON  V.  KYLE.  g^  jy^-^  \aJcP^--^ ^ 

(Supreme  Court  of  Florida,  1897.    39  Fla.  582,  23  South.  12,  63  Am.  St.  Rep.  '\- .^^y^^^^ 

Bill  by  J.  C.  Kyle  against  Delia  K.  Thomson  and  another  to  fore-  'n^  \^^^- 
close  a  mortgage.    Decree  of  foreclosure  granted,  and  a  money  decree       <^ 
for  deficiency  rendered  against  defendant  John  M.  Thomson.    Defend-  ^ 

ants  appeal.  The  appellee  (complainant  below),  on  November  l-i, 
1891,  filed  a  bill  in  equity  in  the  circuit  court  of  Alachua  county, 
praying 'foreclosure  of  a  mortgage  on  certain  real  estate  situated  in 
that  county.  The  mortgage  debt  was  evidenced  by  a  note  executed  by 
the  appellants  (defendants  below)  to  complainant,  under  date  January 
18,  1890,  for  $2,932,  due  April  10,  1890,  and  payable  in  the  city  of 
Birmingham,  Ala.  The  mortgage  given  to  secure  this  note  was  exe- 
cuted on  the  same  day  by  the  defendants.  The  defendant  Delia  K. 
Thomson  filed  her  plea  on  January  4,  1892,  whereby  she  alleged  that 
prior  and  subsequent  to,  and  at  the  time  of,  the  execution  of  the  note 
and  mortgage,  she  was  a  married  woman,  the  wife  of  her  co-defend- 
ant, and  seised  and  possessed  of  a  statutory  separate  estate  in  her  own 
individual  right  and  control,  part  of  which  was  embraced  in  the  mort- 
gage; that  the  note  and  mortgage  were  executed  in  the  state  of  Ala- 
bama, and  that  all  transactions  out  of  which  the  mortgage  debt  arose 
occurred  in  said  state;  that  the  mortgage  debt  was  the  debt  of  her 
husband  exclusively,  and  she  executed  the  note  and  mortgage  as  se- 
curity only,  and  upon  no  other  consideration ;  that  by  the  laws  of  Ala- 
bama the  obligation  of  a  married  woman  executed  for  her  husband's 
debt  was  null  and  void,  and  incapable  of  enforcement,  and  that  the  note 
and  mortgage,  being  void  as  to  her  in  the  state  of  Alabama,  were  like- 
wise void  in  the  state  of  Florida.  This  plea  was,  upon  argument,  over- 
ruled.* 

Carter,  J.°  The  question  presented  by  the  plea  of  Delia  K.  Thom- 
son is  an  interesting  one,  and  one  upon  which  the  authorities  are  not 
in  entire  accord.  It  is  not  denied  by  appellants  that,  had  the  mortgage 
sought  to  be  foreclosed  in  this  case  been  executed  in  this  state,  it  would 
have  been  valid,  and  enforceable  under  our  laws.  Indeed,  it  has  been 
held  by  this  court,  on  more  than  one  occasion,  that  a  mortgage  properly 
executed  by  a  married  woman  and  her  husband,  conveying  the  wife's 
separate  statutory  real  estate  as  security  for  her  husband's  debt,  is  / 
valid.  Dzialynski  v.  Bank  of  Jacksonville,  23  Fla.  346.  2  South.  696  : 
Ballard  v.  Lippman,  32  Fla.  481,  14  South.  154.     It  is  insisted,  how- 

*Statement  of  facts  taken  from  23  South.  12. 

6  Only  so  much  of  the  opinion  is  given  as  relates*  to  the  issue  of  capacity. 


244 


GENERAL  PROVISIONS. 


(Part  1 


(9 


i^ 


^ 


W 


iH 


ever,  that  under  the  laws  of  Alabama  a  married  woman  is  without  ca- 
pacity to  bind  herself  or  her  property  as  security  for  the  debt  of  her 
husband,  and,  as  the  mortgage  sought  to  be  enforced  in  this  case  was 

r  executed,  and  the  debt  secured  thereby  was  payable,  in  that  state,  and 
all  the  parties  were  there  domiciled,  that  those  laws  necessarily  entered 
.4^  ^  .  yt>^  .  i^^to  and  became  a  part  of  the  contract,  rendering  it  void  in  that  state; 
Jl^  and  that,  being  void  in  Alabama,  it  is,  by  virtue  of  interstate  law,  void 
in  Florida.  It  may  be  admitted  that  this  argument  has  strong  applica- 
tion to  the  note  executed  by  Mrs.  Thomson  with  her  husband,  which 
the  mortgage  was  given  to  secure,  for,  the  note  being  a  general  per- 
sonal obligation,  if  void  by  the  laws  of  the  state  in  which  it  was  exe- 
cuted and  made  payable,  it  ought  likewise  to  be  void  in  every  other 
state  where  it  is  sought  to  be  enforced.  But  it  does  not  follow  that 
because  Mrs.  Thomson  is  not  bound  by  the  note  it  is  for  that  reason 
totally  void.  It  still  remains  a  valid  obligation  of  her  husband,  which 
she  can,  in  this  state,  secure  by  a  mortgage  of  her  separate  statutory 
property.  Dzialynski  v.  Bank  of  Jacksonville,  23  Fla.  346,  2  South. 
696.  We  do  not  understand  that  any  principle  of  interstate  law  re- 
quires us  to  test  the  validity  or  sufficiency  of  conveyances  of  or  liens 
upon  real  estate  in  this  state  by  the  laws  of  other  states  or  nations, 
even  though  such  contracts  may  have  been  executed,  or  given  to  secure 
the  performance  of  some  act,  within  their  jurisdiction.  The  reasons 
why  we  should  not  are  obvious.  The  subject-matter,  with  reference 
to  the  title  of  which  the  conveyance  or  lien  is  executed,  being  at  the 
time  of  such  execution  an  immovable  thing,  not  only  located  beyond 
the  control  of  that  sovereignty  within  whose  jurisdiction  the  contract 
is  executed,  and  forever  so  to  remain,  but  then  within  the  exclusive  ju- 
risdiction of  another  independent  sovereignty,  and  forever  so  to  re- 
main, the  parties  to  such  conveyance  are  presumed  to  have  contracted, 
at  least  so  far  as  the  immovable  thing  is  concerned,  with  reference  to 
the  laws  of  that  jurisdiction  within  whose  borders  the  thing  is  situated. 
And  no  sovereign  state,  without  express  legislative  sanction,  is  presum- 
ed to  surrender  to  owners  of  immovable  property  within  its  limits  the 
power  to  incumber  or  change  the  title  thereto  in  any  other  manner  than 
that  pointed  out  by  its  laws.  It  is,  therefore,  almost  universally  held 
that,  so  far  as  real  estate  or  immovable  property  is  concerned,  we  must 
look  to  the  laws  of  the  state  where  it  is  situated  for  the  rules  which 
govern  its  descent,  alienation,  and  transfer,  and  for  the  construction, 
validity,  and  effect  of  conveyances  thereof  (United  Statgp  y^  Crosby.  7  . 
Cranch  (U.  S.)  115,  3  L.  Ed.  287;  McGoon  v.  Scales,  9  Wall.  (U.  S.) 
23,  19  L.  Ed.  545;  Brine  v.  Hartford  Fire  Ins.  Co.,  96  U.  S.  627,  24  L. 
Ed.  858  ;  Gault  v.  Van  Zile,  37  Mich.  22 ;  Bissell  v.  Terry,  69  111.  184 ; 
West  V.  Fitz,  109  III.  425 ;  Fessendeny.  Taft^65  KJH.  39,  17  Atl. 
713;  Curtis  v.  Hutton,  14  Ves.  ^JT'  -^^^sori"v7TVjlHan^s^57_Mi£s. 
451 ;  Crolly  v.  Clark,  20  Fla.  849 ;  Frazier  v.  Boggs,  37  Fla.  307,  20 
South,  245) ;  and  it  is  to  the  same  law  that  we  must  look  for  the  rules 
governing  the  capacity  of  the  parties  to  such  contracts  or  conveyances, 


Ch.  6)  CAPACITY.  245 

and  their  rights  tinder  the  same  (Doyle  v.  McGuire,  38  Iowa,  410; 
Baum  V.  Birchall,  150  Pa.  164,  24  Atl.  620,  30  Am.  St.  Rep.  797; 
Chapman  v.  Robertson,  6  Paige  (N.  Y.)  627,  31  Am.  Dec.  264;  Suc- 
cession of  Larendon,  39  La.  Ann.  952,  3  South.  219 ;  Succession  of 
Cassidy,  40  La.  Ann.  827,  5  South,  292 ;  2  Pars.  Cont.  *572 ;  Story. 
Confl.  Laws,  §  431 ;  Ror.  Interst.  Law,  p.  263).  It  would  seem  there- 
fore, that  upon  principle  the  mortgage  in  this  case  should  be  subjected 
to  the  laws  of  this  state,  in  order  to  ascertain  its  validity,  construction, 
and  the  capacity  of  the  parties  to  execute  it,  rather  than  to  the  laws  of 
the  state  of  Alabama,  within  whose  borders  the  real  estate  is  not  situ- 
ated, and  as  to  which  her  laws  can  have  no  extraterritorial  effect. 
While  a  contrary  opinion  was  entertained  in  Ohio  (Evans  v.  Beaver, 
50  Ohio  St.  190,  33  N.  E.  643,  40  Am.  St.  Rep.  6Q6),  it  has  been  held 
in  several  well-considered  cases  that,  although  by  the  laws  of  the 
state  of  a  married  woman's  domicile  she  has  no  capacity  to  execute  a 
mortgage  upon  her  separate  estate  as  security  for  the  debt  of  her  hus- 
band, yet  if  she,  in  that  state,  executes  a  mortgage  of  that  character 
upon  real  estate  situated  in  another  state,  whose  laws  permit  a  married 
woman  to  mortgage  her  property  to  secure  such  a  debt,  the  mortgage 
will,  in  the  latter  state,  be  held  valid,  and  enforceable  in  its  courts  by 
appropriate  proceedings.  Post  v.  First  Nat.  Bank,  38  111.  App.  259,  af- 
firmed 138  111.  559,  28  N.  E.  978 ;  Cochran  v.  Benton,  126  Ind.  58,  25 
N.  E.  870 ;  Johnston  v.  Gawtry,  11  Mo.  App.  322.  See,  also,  Erierson 
V.  Williams,  57  Miss.  451;  Goddard  v.  Sawyer,  9  Allen  (Mass.)  78; 
i5wank  V.  Hufnagle,  111  Ind.  453,  12  N.  E.  303, — where  the  same 
principles  were  applied  to  a  different  state  of  facts.  We  hold  that, 
notwithstanding  Mrs.  Thomson's  incapacity  by  the  laws  of  Alabama 
to  execute  the  mortgage  sought  to  be  foreclosed  here,  she  was  capable, 
under  our  laws,  of  executing  in  Alabama  a  mortgage  upon  her  separate 
statutory  real  property  in  this  state  to  secure  her  husband's  debt,  and 
that  her  plea  was  properly  overruled.  This  conclusion  also  disposes  of 
those  portions  of  the  cross  bill  and  answer  of  the  defendant  John  M. 
Thomson  which  cover  the  same  matters  as  this  plea.     *     *     *  e 

"  The  lex  rei  sitse  does  not  govern  the  capacity  to  transfer  personal  prop- 
erty. Huey's  Appeal,  1  Grant's  Cases  (Pa.)  51  (18-54) ;  Kohne's  Estate.  1 
Pars.  Eq.  Cas.  (Pa.)  399  (1850).  It  may  be  imposed,  however,  by  statute. 
Loftus  V.  Farmers'  &  Mechanics'  Nat.  Bank,  133  Pa.  97,  19  Atl.  347,  7  L. 
R.  A.  313  (1890). 

Continental  Law. — Capacity  to  act  with  respect  to  realty  is  governed 
by  the  national  law  of  the  parties.  Germany,  article  7.  Law  Intr.  Civ. 
Code,  subject,  however,  to  renvoi  (article  27,  Law  Intr.) ;  I  tain,  article  6, 
Prel.  Disp.  Civ.  Code:  Cass.  Rome,  .Jan.  5,  1906  (34  Clunet.  1205);  Cass. 
Turin,  May  10,  1867  (Giurispr.  Tor.  1867,  1,  395).  Contra:  France,  article 
3,  Civ.  Code,  providing  for  the  application  of  the  law  of  the  situs;  App.  Paris, 
March  5,  1901  (28  Clunet,  775).  See  App.  Paris,  March  12,  1881  (8  Clunet, 
355). 


246  GENERAL  PROVISIONS.  (Part  1 

SECTION  2.— CORPORATIONS. 


BANK  OF  AUGUSTA  v.  EARLE. 

(Supreme  Court  of  the  United  States,  1839.     13  Pet.  519,  10  L.  Ed.  274.) 

Taney,  C.  J  J  *  *  *  The  questions  presented  to  the  court  arise 
upon  a  case  stated  in  the  Circuit  Court  in  the  following  words : 

"The  defendant  defends  this  action  upon  the  following  facts,  that 
are  admitted  by  the  plaintiffs :  that  plaintiffs  are  a  corporation,  in- 
corporated Jby_a|j^^act-i^f_thej[  ,pgi sla tJire_of_the  state  of  Georgia,  and 
have  power  usually  conferred  upon  banking  institutions,  such  as  to  pur- 
chase bills  of  exchange,  etc.  That  the  bill  sued  on  was  made  and  in- 
dorsed, for  the  purpose  of  being  discounted  by  Thomas  McGran,  the 
agent  of  said  bank,  who  had  funds  of  the  plaintiffs  in  his  hands  for 
the  purpose  of  purchasing  bills,  which  funds  were  derived  from  bills 
and  notes  discounted  in  Georgia  by  said  plaintiffs,  and  payable  in  Mo- 
bile ;  and  the  said  McGran,  agent  as  aforesaid,  did  so  discount  and 
purchase  the  said  bill  sued  on,  in  the  city  of  Mobile,  state  aforesaid, 
for  the  benefit  of  said  bank,  and  wnth  their  funds,  and  to  remit  said 
funds  to  the  said  plaintiff's. 

"If  the  court  shall  say  that  the  facts  constitute  a  defence  to  this  ac- 
tion, judgment  will  be  given  for  the  defendant,  otherwise  for  plain- 
tiffs, for  the  amount  of  the  bill,  damages,  interest,  and  cost ;  either 
party  to  have  the  right  of  appeal  or  writ  of  error  to  the  Supreme  Court 
upon  this  statement  of  facts,  and  the  judgment  thereon." 

Upon  this  staternent  of  facts,  the  court  gave  judgmeiit__fqr^the  4e- 
fendantj^beino:  of  opmion  that  XZbanJEIincQroQrated  by  the  laws  of^ 
Georgia,  with  a  power  among  other_things_jto  ^urchasje-biUs.-,of  ex^. 
ch  ange77nii1fnn?g;;jg^\^  in  the  state^^rFAIabarrm , 

and  that  the  contract  for  thisJbJll  was  therefore  voidLand_didiiot  bind. 


the  parties- to  the  paymen4-ef-4lie,jnoney^     *     *     * 

The  nature  and  character  of  a  corporation  created  by  a  statute,  and 
the  extent  of  the  powers  which  it  may  lawfully  exercise,  have  upon 
several  occasions  been  under  consideration  in  this  court. 

In  the  case  of  Head  v.  Providence  Ins.  Co.,  2  Cranch,  127,  2  L.  Ed. 
229,  Chief  Justice  Marshall,  in  delivering  the  opinion  of  the  court,  said, 
"without  ascribing  to  this  body,  which  in  its  corporate  capacity  is  the 
mere  creature  of  the  act  to  which  it  owes  its  existence,  all  the  qualities 
and  disabilities  annexed  by  the  common  law  to  ancient  institutions  of 
this  sort,  it  may  correctly  be  said  to  be  precisely  what  the  incorporating 
act  has  made  it;    to  derive  all  its  powers  from  that  act,  and  to  be 

T  The  statement  of  facts,  u  part  of  the  opinion,  and  the  dissenting  opinion 
of  McKinley,  J.,  have  been  omitted. 


Ch.  6) 


CAPACITY. 


247 


capable  of  exerting  its  faculties  only  in  the  manner  which  that  act  au- 
thorizes. 

"To  this  source  of  its  being,  then,  we  must  recur  to  ascertain  its 
powers ;  and  to  determine  whether  it  can  complete  a  contract  by  such 
communications  as  are  in  this  record." 

In  the  case  of  Dartmouth  College  v.  Woodward,  4  Wheat.  G36,  4 
L.  Ed.  G29,  the  same  principle  was  again  decided  by  the  court.  "A 
corporation,"  said  the  court,  "is  an  artificial  being,  invisible,  intangible, 
and  existing  only  in  contemplation  of  law.  Being  a  mere  creature  of 
the  law,  it  possesses  only  those 


_  )roperties  which  the  charter  ofJ.ts  crea- 
tion  confers  upon  it,  eitherexpressly,  or  ^sjncidental  to  its  very  ex- 
istence."         "" 

And  in  the  case  of  the  Bank  of  United  States  v.  Dandridge,  12 
Wheat,  64,  6  L.  Ed.  552,  where  the  questions  in  relation  to  the  powers 
of  corporations  and  their  mode  of  action,  were  very  carefully  consider- 
ed, the  court  said :  "But  whatever  may  be  the  implied  powers  of  ag- 
gregate corporations  by  the  common  law,  and  the  modes  by  which 
those  powers  are  to  be  carried  into  operation ;  corporations  created  by 
statute  must  depend  both  for  their  powers  and  the  mode  of  exercising 
them,  upon  the  true  construction  of  the  statute  itself." 

It  cannot  be  necessary  to  add  to  these  authorities.     And  it  may  be 


safely  assumed  jthat^a  corporation  can  make  no  contracts,  and  do  no 
acts'eiTlieFwTthin  or~"without  thejtate^wdiich  create.';  it,  pxrppt  such  as 
are  aujhonzed  by  Jjj^  chafterT~andrtho^_acts  must  also  be  done,  by 
such  officers^or  agents,  and  in  such  manner,  aj^the  charter  authorizes. 
And  if  tlieJaw_creating~a"corporation,  does  not^^jijL-tbe  true  conotrttg- 
tion  ot^the  words  used  in  the  charter,  give  it  the  right  to  exercise  its 
powers  beyond  the  limits  oTtlTe~statg7"an~contracts  made  by  it  in  otlier 
states  would  be^voidr~         ~~~  ' 

THe  charter  of  the  Baak-n£  Augii5ia__authorizes  it.  in  general  terms,.. 


to  deal  in  bills  of  exchange ;  and  consequently,  gives  it  the  power  to 
purchase"  forei^^bilTs  as  well  as  inland  finotHeF^ords,  to  purchase 
bills  payable^  in  another  state.  The  power  thus  given,  clothedTEecor^ 
poration  wifirtHe  right  to  make  conixa5sIouf~orTHe~state.  in  so  far^as 
Georgia  could  confer  it.  For  whenever  it  purchased  a  foreign  bill, 
and  forwarded  it  to  an  agent  to  present  for  acceptance,  if  it  was  honor- 
ed by  the  drawee,  the  contract  of  acceptance  was  necessarily  made  in 
another  state;  and  the  general  power  to  purchase  bills  without  any 
restriction  as  to  place,  by  its  fair  and  natural  import,  authorized  the 
bank  to  make  such  purchases,  wherever  it  was  found  most  convenient 
and  profitable  to  the  institution;  and  also  to  employ  suitable  agents 
for  that  purpose.  The  purchase  of  the  bill  in  question  was,  therefore, 
the  exercise  of  one  of  the  powers  which  the  bank  possessed  under  its 
charter ;  and  was  sanctioned  by  the  law  of  Georgia  creating  the  cor- 
poration, so  far  as  that  state  could  authorize  a  corporation  to  exercise 
its  powers  beyond  the  limits  of  its  own  jurisdiction. 

But  it  has  been  urged  in  the  argument,  that  notwithstanding  the 


248 


GENERAL  PROVISIONS. 


(Part  1 


^v^ 


/^^ 


>A  ^.w^ 


powers  thus  conferred  by  the  terms  of  the  charter,  a  corporation,  from 
the  very  nature  of  its  being,  can  have  no  authority  to  contract  out  of 
the  hmits  of  the  state ;  that  the  laws  of  a  state  can  have  no  extra-terri- 
torial operation;  and  that,  as  a  corporation  is  the  mere  creature  of  a 
law  of  the  state,  it  can  have  no  existence  beyond  the  limits  in  which 
that  law  operates ;  and  that  it  must  necessarily  be  incapable  of  making 
a  contract  in  another  place. 

It  is  veryjrue  that  a  corporation^^an_Jiave  no  legal^xistence  out  of 
the 


bouhHaries  ofThe^overeignty  by  wliicn  it  is'  created.  It  exists 
only  in  contemplatimi  ofTawTajrd^by  force  of  the  Taw;  and  where  that 
law  ceases  to  operate,  andTs  no  longer  obligatory7  the  corporation  can 
have  no-'e?4st£nce.  Itlmist  dw^tfrrrtheTplace  ofTEs  creation,  and  can- 
not migrate  to  another  sovereignty.  But  although  it  must  Jive  and 
have  its  being  in  that  state  only,  yeMtjdoes  not  by  any  means  follow 
that  its"exislencel:here  willnot  be  recognized  in^othiF4ila£esJ__anJ]its 
residence  in  one  state  creaks  no  msuperable^objection  tojts  power 
of  conrracTing  in  anutlier:  It  is  indeed  alnere  artiticial  bemg^  invisible 
and  intangiHey  yet  it  is  a  person,  for  certain  purposes  in  contempla- 
tion of  law,  and  has  been  recognized  as  such  by  the  decisions  of  this 
court.  It  was  sa  held  in  the  case  of  United  States  v.  Amedy,  11 
Wheat.  413,  6  L.  Ed.  503,  and  in  Beaston  v.  Farmers'  Bank  of  Dela- 
ware, 18  Pet.  135,  9  L.  Ed.  1017.  Now  natural  persons,  through  the 
intervention  of  agents^re  continually  naaking~co!Tfracts  in  countries 
in  whirth-they  do  not  reside ;  and  where  ■Hip^rgrg-TTPt-^ggrs^on^^ 
when  the  contract  is^ made ;  and  nobody  has  ever  doubted_the  validity 
of  these,  agreements.  And  what  greater  objectfon  can  therejF  to  the 
capacity  of  an  artT!Tcial  person,  by  its  agentsrto  ma^eJaTcontract  with- 
in  the  scope  of  its  limited  powers,  in  a  sovereignty  in  which  it  does  not 
reside;  provided  sucfiTcbntra^ls  are  pCTmifted  to  be^Hade  by  them  by 
the  laws  of  the  place  ? 

'  The  ^corporation  must  no  doubt  slioay  that  the  law  of  its  cre^^on 
gave  it  authority,  tQ-Jiiake_such  contracts,  through  such  agents.  Yet, 
as  in  the  case  of  a  natural  person,  it  is  not  necessary  that  it  should  ac- 
tually exist  in  the  sovereignty  in  which  the  contract  is  made.  It  is  suf- 
ficient that  its  existence  as  an  artificial  person,  in  the  state  of  its  crea- 
tion, is  acknowledged  and  recognized  by  the  law  of  the  nation  where 
the  dealing  takes  place ;  and  that  it  is  permitted  by  the  laws  of  that 
place  to  exercise  there  the  powers  with  which  it  is  endowed. 

Every  power,  however,  of  the  description^of  jwhich  we  are  speaking, 
which,a-C<»i^porQtion^^^iSi3adSesJn^^  state,  depen dOS" Jtslvalid i ty 

upon  lhe-4aw5  of  iho  60V£re.Lgnty  liT^wljich  it  isexercised ;  and  a  coy? 
poration-ean  make  ne--valid^contracF~wflhouTlEillL-^^  express. 

orJxoplie^T — And  this  brings  ustoTHe~question  which  has  been  so  elab- 
orately discussed ;  whether,  by  the  comity  of  nations  and  between 
these  states,  the  corporations  of  one  state  are  permitted  to  make  con- 
tracts in  another.  It  is  needless  to  enumerate  here  the  instances  in 
which,  by  the  general  practice  of  civilized  countries,  the  laws  of  the 


Ch.  6)  CAPACITY.  249 

one,  will,  by  the  comity  of  nations,  be  recognized  and  executed  in  an- 
other, where  the  right  of  individuals  are  concerned.  The  cases  of  con- 
tracts made  in  a  foreign  country  are  familiar  examples;  and  courts  of 
justice  have  always  expounded  and  executed  them,  according  to  the 
laws  of  the  place  in  which  they  were  made ;  provided  that  law  was  not 
repugnant  to  the  laws  or  policy  of  their  own  country.  The  comity 
thus  extended  to  other  nations  is  no  impeachment  of  sovereignty.  It 
is  the  voluntary  act  of  the  nation  by  which  it  is  offered ;  and  is  inad- 
missible when  contrary  to  its  policy,  or  prejudicial  to  its  interests.  But 
it  contributes  so  largely  to  promote  justice  between  individuals,  and  to 
produce  a  friendly  intercourse  between  the  sovereignties  to  which  they 
belong,  that  courts  of  justice  have  continually  acted  upon  it,  as  a  part 
of  the  voluntary  law  of  nations.  It  is  truly  said,  in  Story's  Conflict 
of  Laws,  36,  37,  that:  "In  the  silence  of  any  positive  rule,  affirming, 
or  denying,  or  restraining  the  operation  of  foreign  laws,  courts  of 
justice  presume  the  tacit  adoption  of  them  by  their  own  government ; 
unless  they  are  repugnant  to  its  policy,  or  prejudicial  to  its  interests. 
It  is  not  the  comity  of  the  courts,  but  the  comity  of  the  nation  which 
is  administered,  and  ascertained  in  the  same  way,  and  guided  by  the 
same  reasoning,  by  which  all  other  principles  of  municipal  law  are  as- 
certained and  guided." 

Adopting,  as  we  do,  the  principle  here  stated,  we  proceedJo  inquir£_ 
whether,  by  the  comity  of  nations,  forejgn  corporations  are  permitted 
to  make^ontracts  witHm' their  juTisdictjon;  and_we_can  perceive  no 
sufficient^!  t-.HSgn"for  excluding  them,  wiien^  they  are  not  contrary  To' 
the  known  policy  of  the  state,  or  injurious  to  its  interests7  It  is  noth- 
ing  more  thanthe  admission  oflhe  existence  of  an  artificial  person  cre- 
ated by  the  law  of  another  state,  and  clothed  with  the  power  of  mak- 
ing certain  contracts.  It  is  but  the  usual  comity  oX,recognizing  th^ 
law  of  another  state.  In  England,  from  which  we  have  received  our 
geutl^iul  principles  oPjurisprudence,  no  doubt  appears  to  have  been 
entertained  of  the  right  of  a  foreign  corporation  to  sue  in  its  courts ; 
since,  the  case  of  Henriques  v.  Dutch  West  India  Company  (decided 
in  1729)  2  L.  Raymond,  1532.  And  it  is  a  matter  of  history,  which 
this  court  are  bound  to  notice,  that  corporations,  created  in  this  coun- 
try, have  been  in  the  open  practice  for  many  years  past,  of  making 
contracts  in  England  of  various  kinds,  and  to  very  large  amounts; 
and  we  have  never  seen  a  doubt  suggested  there  of  the  validity  of 
these  contracts,  by  any  court  or  any  jurist.  It  is  impossible  to  imagine 
that  any  court  in  the  United  States  would  refuse  to  execute  a  contract, 
by  which  an  American  corporation  had  borrowed  money  in  England; 
yet  if  the  contracts  of  corporations  made  out  of  the  state  by  which 
they  were  created,  are  void,  even  contracts  of  that  description  could 
not  be  enforced. 

It  has,  however.  been—Supposed  that  the  rules  of  comity  between 
foreign  nations, 
■extend" 


250 


GENERAL  PROVISIONS. 


(Part  1 


the  ConstitiitiQn.^oi-  the  United  States;  and  jthaLihe  cojiils^  of  the 
general  government  are  not  at  iTbCTtyHrO" presume,  in  the  absence  of 
all  legislation  on  the  subject,  that  a  state  has  adopted  the  comity  of 
nations  toj^vards  the  other  states,  as  a  part  of  its  jurisprudence;  or 
that  it  acknowledg'^r'aiiy  rights  but  those  which  are  secured  by  the 
Constitution  of  the  United  States.  The  cojArt  think  ^hervvise.  The 
intimate  union  of  these  states,  as  members  of  the  'same  great'  political 
family ;  the~deep  and  vHarinfefests^2wted]^bind^tTiem~so  closely  to- 
^n^er^^ryn\r[^lpa^  ^^^_ir^_fheJ]hRer\ce.  of  proofjto_the_^ontrary^to 
^degree  of  coniTty7~and  Tnendship,  and  kindness 


presu_me_a^  _     _ 

towards_one^ another,  than  we  sliould  be  authorized  to  presume  be- 
tween foreign  nations.  And  when  (as  without  doubt  must  occasion- 
ally^happenJTTieTnterest  or  policy  of  any  state  requires  it  to  restrict 
the  rule,  it  has  but  to  declare  its  will,  and  the  legal  presumption  is 
at  once  at  an  end.  But  until  this  is  done,  upon  what  grounds  could 
this  court  refuse  to  administer  the  law  of  international  comity  be- 
tween these  states?  They  are  sovereign  states;  and  the  history  of 
the  past,  and  the  events  which  are  daily  occurring,  furnish  the  strong- 
est evidence  that  they  have  adopted  towards  each  other  the  laws  of 
comity  in  their  fullest  extent.  Money  is  frequently  borrowed  in  one 
state,  by  a  corporation  created  in  another.  The  numerous  banks  es- 
tablished by  different  states,  are  in  the  constant  habit  of  contracting 
and  dealing  with  one  another.  Agencies  for  corporations  engaged  in 
the  business  of  insurance  and  of  banking  have  been  established  in  other 
states,  and  suffered  to  make  contracts  without  any  objection  on  the 
part  of  the  state  authorities.  These  usages  of  commerce  and  trade 
have  been  so  general  and  public,  and  have  been  practiced  for  so  long 
a  period  of  time,  and  so  generally  acquiesced  in  by  the  states,  that  the 
court  cannot  overlook  them  when  a  question  like  the  one  before  us  is 
under"  consideration.  The  silence  of  the  state  authorities,  while  these 
events  are  passing  before  them,  show  their  assent  to  the  ordinary 
laws  of  comity  which  permit  a  corporation  to  make  contracts  in  an- 
other state.  But  we  are  not  left  to  infer  it  merely  from  the  general 
usages  of  trade,  and  the  silent  acquiescence  of  the  states.  It  appears 
from  the  cases  cited  in  the  argument,  which  it  is  unnecessary  to  re- 
capitulate in  this  opinion;  that  .it  has  been  decided  in  many  of  the 
state  courts,  we  believe  in  all  of^them  where  the  questioiilTas  arisen, 
that^Tcorporation  of  one  state  may  sue.  in  the  courts, of  another.     If 

it  may_sue,  why  may  it  not  make  a  contract,? The  right  to_  sue  is 

one  of  the  powers  which  it  derives  from  its  charter.  If  the  courts 
of  anothernqountry  take  ttotrc^^f  its  e^  as  a  corporation,  so 

far  as  to  allow  it  to  maintain  aTsuit^  and  permit  it  to  exercise^  that 
power,  wHy^slTourd"  not  its  existence  be  recognized  for  other  purposes, 
and  the  corporation  permitted  to  exercise  another  poweF~wTiTclT  is 
given  to  it  by  the  jarne-Iawj:^nd~tTie  same^aaverfiigtity ;  where  "tHeJast- 
mentioned  power  doje5.jToL.come_ija_CQn£ict_with  the  interestoi^jx)licy 
of  the  state?    There  is  certainly  nothing  in  the  nature Tnd  character 


dM^ 


\_C^af^^ 


Ch.   6)  CAPACITY.  ^    251 

of  a  corporation  which  could  justly  lead_to  sii^Ti  a  Hiqf-inrt-inn;__aTKl_ 
which  shonl3~rxterrd-tO^  it  the  comity  of  suit,  and  refuse_to  iLtJie j;onv-_ 
ity  of  contract.  If  it  is  allowed  to  sue,  it  would  of  course  be  permitted 
to  compromise"  if  it  thought  proper,  with  its  debtor ;  to  give  him  time, 
to  accept  something  else  in  satisfaction;  to  give  him  a  release,  and 
to  employ  an  attorney  for  itself  to  conduct  its  suit.  These  are  all  mat- 
ters of  contract,  and  yet  are  so  intimately  connected  with  the  right 
to  sue,  that  the  latter  could  not  be  effectually  exercised  if  the  former 
were  denied.     *     *     * 

We  think  it  is  well  settled,  that  by  the  law  of  comity  among  nations, 
a  corporation  created  by  one  sovereignty  is  permitted  to  make  con- 
tracts in  another,  and  to  sue  in  its  courts ;  and  that  the  same  law  of 
comity  prevails  among  the  several  sovereignties  of  this  Union.  The  A  a  . 
public  and  well  known  and  long  continued  usage  of  trade ;  the  general  \  ^-^'-^-^M"*'^^ 
acquiescence  of  the  states;  the  particular  legislation  of  some  of  them, 
as  well  as  the  legislation  of  Congress;  all  concur  in  proving  the  truth 
of  this  proposition. 

But  we  have  already  said  that  this  comity  is  presumed  from  the 
silent  acquiescence  of  the  state.  Whenever  a  state  sufficiently  indicates 
that  contracts  which  derive  their  validity  from  its  comity  are  repug- 
nant to  its  policy,  or  are  considered  as  injurious  to  its  interests;  the 
presumption  in  favor  of  its  adoption  can  no  longer  be  made.  And 
it  remains  to  inquire,  whether  there  is  any  thing  in  the  Constitution 
or  laws  of  Alabama,  from  Avhich  this  court  would  be  justified  in  con- 
cluding that  the  purchase  of  the  bill  in  question  was  contrary  to  its 
policy.     *     *     * 

It  is  but  justice  to  all  the  parties  concerned  to  suppose  that  these 
contracts  were  made  in  good  faith,  and  that  no  suspicion  was  enter- 
tained by  either  of  them  that  these  engagements  could  not  be  en- 
forced. Money  was  paid  on  them  by  one  party,  and  received  by  the 
other.  And  when  we  see  men  dealing  with  one  another  openly  in 
this  manner,  and  making  contracts  to  a  large  amount,  we  can  hardly 
doubt  as  to  what  was  the  generally  received  opinion  in  Alabama  at 
that  time  in  relation  to  the  right  of  the  plaintiffs  to  make  such  con- 
tracts. Everything  now  urged  as  proof  of  her  policy,  was  equally 
public  and  well  known  when  these  bills  were  negotiated.  And  when 
a  court  is  called  on  to  declare  contracts  thus  made  to  be  void,  upon 
the  ground  that  they  conflict  with  the  policy  of  the  state,  the  line  of 
that  policy  should  be  very  clear  and  distinct  to  justify  the  court  in  sus- 
taining the  defence.  Nothing  can  be  more  vague  and  indefinite  than 
that  now  insisted  on  as  the  policy  of  Alabama.  It  rests  altogether 
on  speculative  r,easoning  as  to  her  supposed  interests,  and  is  not  sup- 
ported by  any  positive  legislation.  There  is  no  law  of  the  state  which 
attempts  to  define  the  rights  of  foreign  corporations. 

We,  however,  do  not  mean  to  say  that  there  are  not  many  subjects 
upon  which  the  policy  of  the  several  states  is  abundantly  evident,  from 


L^ 


( 


252  GENERAL  PROVISIONS.  (Part  1 

the  nature  of  their  institutions  and  the  general  scope  of  their  legis- 
lation, and  which  do  not  need  the  aid  of  a  positive  and  special  law 
to  guide  the  decisions  of  the  courts.  When  the  policy  of  a  state  is 
thus  manifest7  the  courts  of  the  United  States  would  be  bound  to  no- 
tice it  as  a  part  of  its  code  of  laws,  and  to  declare  all  contracts  in  the 
state  repugnant  to  it  to  be  illegal  and  void.  Nor  do  we  mean  to  say 
whether  there  may  not  be  some  rights  under  the  Constitution  of  the 
United  States  which  a  corporation  might  claim  under  peculiar  cir- 
cumstances, in  a  state  other  than  that  in  which  it  was  chartered.  The 
reasoning,  as  well  as  the  judgment  of  the  court,  is  applied  to  the  mat- 
ter before  us;  and  we  think  the  contracts  in  question  were  valid, 
and  that  the  defence  relied  on  by  the  defendants  cannot  be  sustained. 

The  judgment  of  the  circuit  court  in  these  cases  must  therefore  be 
reversed,  with  costs. 

8As  to  doctrine  of  English  courts,  see  E.  Hilton  Young,  Status  of  For- 
eign Corporations  and  the  Legislature,  23  Law  Quar.  Rev.  290-303. 

The  status  of  a  corporation  will  in  general  be  determined  in  accordance 
with  the  law  of  the  state  creating  it  Mumma  v.  Potomac  Co.,  8  Pet.  281, 
8  L.  Ed.  94.5  (1834) ;    Remington  &  Sons  v.  Samana  Bay  Co.,  140  Mass.  494, 

5  N.  E.  292  (1886).  See  Liverpool  Ins.  Co.  v.  Massachusetts,  10  Wall.  560, 
19  L.  Ed.  1029  (1870).  This  law  will  govern  also  the  status  of  a  stockholder. 
Nashua  Sav.  Bank  v.  Anglo-American  Land  Mortgage  &  Agency  Co.,  189 
U.  S.  221.  23  Sup.  Ct.  517,  47  L.  Ed.  782  (1903) ;  McKim  v.  Glenn,  66  Md.  479, 
8  Atl.  130  (1887) ;  Electric  Welding  Co.  v.  Prince,  195  Mass.  242,  81  N.  E. 
306  (1907).  And  the  powers  of  a  corporation.  Canada  Southern  R.  Co.  v. 
Gebhard,  109  U.  S.  527,  3  Sup.  Ct.  363,  27  L.  Ed.  1020  (1883);  Supreme 
Council  of  American  Legion  of  Honor  v.  Green,  71  Md.  2(33,  17  Atl.  1048, 
17  Am.  St.  Rep.  527  (1889).  But  the  general  laws  of  the  state  creating 
a  corporation  do  not  form  a  part  of  its  charter,  and  hence  have  no  extra- 
territorial effect.  Mutual  Life  Ins.  Co.  v.  Cohen,  179  U.  S.  202,  21  Sup. 
Ct.  106,  45  L.  Ed.  181  (1900) ;  White  v.  Howard,  38  Conn.  342  (1871) ;  Borton  v. 
Brines-Chase  Co.,  175  Pa.  209,  34  Atl.  597  (1896).  But  see  Starkweather  v. 
American  Bible  Soc,  72  111.  50,  22  Am.  Rep.  133  (1874). 

The  rights  of  a  foreign  corporation  being  dependent  upon  comity,  it  fol- 
lows that  it  may  be  excluded  by  a  state  or  admitted  upon  terms.  Paul  v. 
Virginia,  8  Wall.  168,  19  L.  Ed.  357  (1868).  As  to  the  effect  of  noncompli- 
ance with  the  local  statutes,  see  J.  H.  Beale,  Jr.,  Foreign  O>rporations,  §§ 
212-214;    1  L.  R.  A.  (N.  S.)  1041-1042. 

It  also  follows  that  no  power  gi'anted  by  the  charter  can  be  exercised  in 
the  face  of  a  prohibitive  statute  or  a  clearly  defined  local  policy.  White 
v,  Howard,  46  N.  Y.  144  (1871) ;  Falls  v.  United  States  Sav.  Loan  &  Build- 
ing Co.,  97  Ala.  417,  13  South.  25,  24  L.  R.  A.  174,  38  Am.  St.  Rep.  194  (1892) ; 
Lancaster  v.  Amsterdam  Imp.  Co.,  140  N.  Y,  576,  35  N.  E.  964,  24  L.  R.  A. 
322  (1894) ;  Van  Steuben  v.  Central  R.  Co.  of  New  Jersey,  178  Pa.  367,  35 
Atl.  992,  34  L.  R.  A.  577  (1896).  And  it  is  held  that  certain  special  privileges 
granted  by  the  lex  domicilii  will  not  be  recognized  in  another  jurisdiction. 
People  V.  Coleman,  135  N.  Y.  231,  31  N.  E.  1022  (1892). 

Nor  will  comity  be  carried  so  far  as  to  recognize  a  foreign  corporation  not 
autborized  to  transact   business    in   the   chartering  state.     Land   Grant   Ry. 

6  Trust  Co.  V.  Board  of  Com'rs  of  Coffey  County,  6  Kan.  245  (1870) ;  My- 
att  V.  Ponca  City  Land  &  Improvement  Co.,  14  Okl.  189,  78  Pac.  185,  68  L. 
R.  A.  810  (1903).  The  mere  fact,  however,  that  a  coriwration  is  formed  un- 
der the  law  of  a  state  by  citizens  of  another  .iurisdiction  who  intend  to  car- 
ry on  tbo  principal  part  of  their  business  or  all  their  business  in  their  homfr 
state,  will  not  deprive  it  of  recognition  by  such  state.  Demarest  v.  Flack, 
128  N.  Y.  205.  28  N.  E.  64.5.  13  L.  R.  A.  854  (1891);  Lancaster  v.  Amsterdam 
Imp.  Co.,  140  N.  Y.  576,  35  N.  E.  964,  24  L.  R.  A.  322  (1894).    But  see  Hill  v. 


Cll.   6)  CAPACITY.  253 

Beach,  12  N.  J.  Eq.  31  (1858) ;  Montgomery  v.  Forbes,  148  Mass.  249,  19  N.  E. 
342  (1889). 

By  transacting  business  in  a  foreign  jurisdiction,  a  corporation  becomes 
subject  to  its  laws.  Slaanuon  v.  Georgia  State  Building  &  Loan  Ass'n,  78 
Miss.  955,  30  South.  51.  57  L.  R.  A.  800.  84  Am.  St.  Rep.  657  (1901) ;  Abraham 
V.  Mutual  Reserve  Fund  Life  Ass'n,  183  Mass.  116,  66  N.  E.  605  (1903).  In 
many  cases,  however,  the  local  law  will  be  deemed  to  have  no  application 
to  foreign  corporations.  Rumbough  v.  Southern  Imp.  Co..  106  N.  C.  461, 
11  S.  E.  528  (1890);  Vanderpoel  v.  Gorman,  140  N.  Y.  563,  35  N.  E.  932, 
24  L.  R,  A.  548,  37  Am.  St.  Rep.  601  (1894). 

Continental  Law. — a.  In  (jenet-ah — No  jurisdiction  will  be  taken  for  the 
purpose  of  dissolving  a  foreign  corporation.  Cass.  Florence,  June  25,  1896 
(26  Clunet,  624).  But  when  a  corporation  is  formed  in  another  country  in 
order  to  evade  the  local  law,  it  will  be  annulled  by  the  courts  of  the  state 
whose  law  has  been  evaded.  Ttib.  Com.  Seine,  Aug.  26,  1902  (31  Clunet, 
189).  See,  also.  A.  Laine,  Des  personnes  morales  en  droit  international  prive 
(20  Clunet,  273-309). 

b.  Germany. — Foreign  corporations  may  sue  and  be  sued.  22  R.  O.  H. 
G.  147  (April  28,  1877).  Article  10,  Law  Intr.  Civ.  Code,  is  held  inapplicable 
to  foreign  business  corporations.  O.  L.  G.  Kiel,  March  21,  1902  (12  Niemeyer, 
469). 

Their  right  to  carry  on  business  depends,  however,  upon  the  law  of  the 
particular  states  (see  section  12,  Industrial  Law  of  Empire),  which  ordinarily 
presupposes  governmental  authorization.  Their  capacity  to  acquire  realty 
may  likewise  be  made  dependent  upon  the  law  of  the  particular  states.  See 
article  88,  Law  Intr.  Civ.  Code. 

See,  also,  E.  Wolff,  De  la  condition  des  soci^tes  etrangeres  en  Allemagne, 
13  Clunet,  134-145,  272-285,  641-656.  Julius  Plotke.  Die  Rechtsfiihigkeit 
ausUindischer  juristischer  Personen  nach  dem  Btirgerlichen  Gesetzbuch  und 
einzelnen  Ausfiihrungsgesetzen  zum  B.  G.  B.,  10  Niemeyer,  211-218,  269-277. 

e.  France. — ^Foreign  corporations  may  be  sued.  Cass.  May  19,  1863  (S. 
1863,  1,  353) ;    Cass.  Aug.  10,  1875  (3  Clunet,  459). 

Since  the  treaty  of  May  30,  1857,  concluded  between  France  and  Belgium, 
foreign  corjDorations,  in  the  absence  of  treaty,  are  authorized  to  sue  and  to 
contract  in  France  only  if  the  conditions  under  which  they  are  organized 
have  been  approved  by  a  decree  of  the  French  government.  Cass.  Aug.  1, 
1860  (S.  1860,  1,  866).  See,  also,  Maurice  Moutier,  Du  droit  pour  les  societes 
commerciales  etrangeres  d'ester  en  justice  en  France,  21  Clunet,  954-978. 

d.  Italv- — A  foreign  corporation  may  sue  and  be  sued.  Cass.  Florence,  June 
21,  1894  (Giurispr.  Ital.  1894,  1,  839) ;  App.  Venice,  July  11,  1893  (Giurispr.  Ital. 
1893,  2.  .540) ;  App.  Catania,  Mch.  6,  1899  (Giurispr.  Ital.  1899,  2,  406). 

Foreign  corporations  intending  to  establish  an  agency  or  branch  in  Italy 
must  comply  with  articles  230^232,  Com.  Code.  If  their  principal  place  of  busi- 
ness is  in  Italy,  Italian  law  will  govern,  even  as  to  the  validity  of  their  creation. 
Article  230.  Com.  Code.  See  Cass.  Turin,  March  15,  1906  (35  Clunet,  909). 
See,  also,  G.  Danieli,  De  la  condition  des  societes  etrangeres  en  Italie,  15 
Clunet,  17-32,  330-343;  Charles  Lefevre,  De  la  condition  des  societes  etran- 
geres en  Italie,  11  Clunet,  234-246. 


254  GENERAL  PROVISIONS.  (Part  1 

CHAPTER  Vn. 
FORM. 


LEROUX  V.  BROWN. 

(Ck)urt  of  Common  Pleas,  1852.    74  Eng.  Com.  Law,  801.) 

An  oral  agreement  was  entered  into  at  Calais,  France,  between  the 
plaintiff  and  the  defendant,  under  which  the  latter,  who  resided  in 
England,  contracted  to  employ  the  former,  who  was  a  British  subject 
residing  at  Calais,  at  a  salary  of  ilOO.  per  annum,  to  collect  poultry 
and  eggs  in  that  neighborhood  for  transmission  to  the  defendant  in 
England,  the  employment  to  commence  at  a  future  day  and  to  con- 
tinue for  a  year  certain. 

Evidence  was  given  on  the  part  of  the  plaintiff  to  show  that  by  jthe 
law  of  France  such  an  agreement  is  capable  of  being  enforced,  al- 
though not  in  writing.  The  defendant  insisted  that  the  contract,  being 
a  contract  not  to  be  performed  within  a  year,  was  unenforceable  in 
England. 

The  court  directed  a  verdict  for  plaintiff ;  leave  being  reserved 
to  the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict  for  him,  if 
the  court  should  be  of  opinion  that  the  contract  could  not  be  enforced 
in  England. 

A  rule  nisi  was  obtained  accordingly.^ 

Jervis,  C.  J.^  I  am  of  opinion  that  the  rule  to  enter  a  nonsuit  must 
be  made  absolute.  There  is  no  dispute  as  to  the  principles  which 
ought  to  govern  our  decision.  My  Brother  Allen  admits,  that,  if  the 
fourth  section  of  the  statute  of  frauds  applies,  not  to  the  validity  of 
the  contract,  but  only  to  the  procedure,  the  plaintiff  cannot  maintain 
this  action,  because  there  is  no  agreement,  nor  any  memorandum  or 
note  thereof,  in  writing.  On  the  other  hand,  it  is  not  denied  by  Mr. 
Honyman,  who  has  argued  this  case  in  a  manner  for  which  the  court 
is  much  -indebted  to  him,  that,  if  the  fourth  section  applies  to  the 
contract  itself,  or,  as  Boullenois  expresses  it,  to  the  solemnities  of 
the  contract,  inasmuch  as  our  law  cannot  regulate  foreign  pontracts, 
a  contract  like  this  may  be  enforced  here.  I  am  of  opinion  that  the 
fourth  section  applies  not  to  the  solemnities  of  the  contract,  but  to 
the  procedure;  and  therefore  that  the  contract  in  question  cannot 
be  sued  upon  here.  The  contract  may  be  capable  of  being  enforced 
in  the  country  where  it  was  made :   but  not  in  England.    Looking  at 

1  This  statement  of  facts  has  been  substituted  for  that  of  the  original 
report. 

2  The  concurring  opinions  of  Maule  and  Talfourd,  JJ.,  have  been  omitted. 


Ch.  7)  FORM.  255 

the  words  of  the  fourth  section  of  the  statute  of  frauds,  and  contrast- 
ing them  with  those  of  the  first,  third,  and  seventeenth  sections,  this 
conclusion  seems  to  me  to  be  inevitable.  The  words  of  section  4  are. 
"No  action  shall  be  brought  upon  any  agreement  which  is  not  to  be 
performed  within  the  space  of  one  year  from  the  making  thereof, 
unless  the  agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereto  by 
him  lawfully  authorized."  The  statute,  in  this  part  of  it,  does  not 
say,  that,  unless  those  requisites  ~are  complied  with,  the  contract  shall 
be  void,  but  merely  that  no  action  shall  be  brought  upon  it;  and,  as 
was  put  with  great  force  by  Mr.  Honyman,  the  alternative,  "unless 
the  agreement,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,"  words  which  are  satisfied  if  there  be  any  written  evidence 
of  a  previous  agreement,  shows  that  the  statute  contemplated  that 
the  agreement  may  be  good,  though  not  capable  of  being  enforced 
if  not  evidenced  by  writing.  This  therefore  may  be  a  very  good 
agreement,  though,  for  want  of  a  compliance  with  the  requisites  of  the 
statute,  not  enforceable  in  an  English  court  of  justice.  This  view 
seems  to  be  supported  by  the  authorities;  because,  unless  we  are  to 
infer  that  the  courts  thought  the  agreement  itself  good,  though  not 
made  in  strict  compliance  with  the  statute,  they  could  not  consistently 
have  held,  as  was  held  in  the  cases  referred  to  by  Sir  Edward  Sugden, 
that  a  writing  subsequent  to  the  contract,  and  addressed  to  a  third 
person,  was  sufficient  evidence  of  an  agreement,  within  the  statute. 
It  seems,  therefore,  that  both  authority  and  practice  are  consistent 
with  the  words  of  the  4th  section.  The  cases  of  Carrington  v.  Roots 
and  Reade  v.  Lamb,  however,  have  been  pressed  upon  us  as  being- 
inconsistent  with  this  view.  It  is  sufficient  to  say  that  the  attention 
of  the  learned  judges  by  whom  those  cases  were  decided,  was  not 
invited  to  the  particular  point  now  in  question.  What  they  were  con- 
sidering was,  whether,  for  the  purposes  of  those  actions,  there  was 
any  substantial  difference 'between  the  4th  and  17th  sections.  It 
must  be  borne  in  mind  that  the  meaning  of  those  sections  has  been  the 
subject  of  discussion  on  other  occasions.  In  Crosby  v.  Wads  worth, 
6  East,  602,  Lord  EHenborough^,  speaking  of  the  fourth  section,  says : 
"The  statute  does  not  expressly  and  immediately  vacate  such  con- 
tracts, if  made  by  parol.  It  only  precludes  the  bringing  of  actions 
to  enforce  them."  Again,  in  Laythoarp  v.  Bryant,  3  N.  C.  735,  3 
Scott,.  238,  Tindal,  C.  J.,  and  Bosanquet,  J.,  say  distinctly  that  the 
contract  is  good,  and  that  the  statute  merely  takes  away  the  remedy, 
where  there  is  no  memorandum  ot  note  in  writing.  I  therefore  think 
we  are  correct  in  holding  that  the  contract  in  this  case  is  incapable 
of  being  enforced  by  an  action  in  this  country,  because  the  fourth 
section  of  St.  29  Car,  II,  c.  3,  relates  only  to  the  procedure,  and  not 
to  the  right  and  validity  of  the  contract  itself.  As  to  what  is  said  by 
Boullenois  in  the  passage  last  cited  by  Brother  Allen,  it  is  to  be  ob- 


256  GENERAL  PROVISIONS.  (Part  1 

served  that  the  learned  author  is  there  speaking  of  what  pertains  ad 
vinculum  obligationis  et  solemnitatem,  and  not  with  reference  to  the 
mode  of  procedure.  Upon  these  grounds,  I  am  of  opinion  that  this  ac- 
tion cannot  be  maintained,  and  that  the  rule  to  enter  a  nonsuit  must  be 
made  absolute.^ 


HOUGHTALING  v.  BALL. 

(Supreme  Court  of  Missouri,  1855.     20  Mo.  563.) 

This  was  an  action  brought  to  recover  the  price  of  wheat  alleged 
in  the  petition  to  have  been  sold  and  delivered  at  Chicago,  111.,  to  be 
paid  for  on  its  arrival  in  St.  Louis. 

Scott,  J.*  This  case  is  here  a  second  time,  and  on  the  same  ques- 
tion that  was  determined  when  it  was  here  before.  19  Mo.  84,  59  Am. 
Dec.  331.  The  real  question  is  one  of  fact,  and  the  aim  of  the  plain- 
tiff is,  to  have  that  fact  tried  by  a  jury,  viz.  whether  the  contract  set 
out  in  the  petition  was  not  so  completed  in  the  state  of  Illinois  by 
a  delivery  of  the  wheat,  as  to  avoid  the  objection  to  it  arising  from  the 
statute  of  frauds,  as  it  does  not  appear  from  the  record  that  there 
is  any  statute  in  that  state  which  affects  the  contract  stated  in  the 
plaintiff's  petition.     *     *     * 

Without  determining  whether  the  case  of  Leroux  v.  Brown,  7-4 
Eng.  C.  L.  801,  would  be  recognized  as  law  here,  it  is  sufficient  to 
say  in  relation  to  it,  that  it  is  founded  on  the  fourth  section  of  the 
English  statute  of  frauds  (St.  29  Car.  II,  c.  3),  which  enacts,  "that 
no  action  shall  be  brought,"  etc.  These  words  are  made  to  control 
the  judgment  rendered  in  that  suit.  But  the  contract  sued  on  here 
is  not  under  the  fourth  section  of  the  English  statute,  nor  under 
the  fifth  section  of  our  law  (Rev.  St.  1845,  c.  68)  which  corresponds 
with  the  fourth  section  of  the  English  statute.     But  the  action  is  un- 

3  The  distinction  between  ttie  fourth  and  setenteenlh  sections  of  the  stat- 
ute of  frauds  was  approved  in  Third  Nat.  Bank  v.  Steel,  129  Mich.  434, 
88  N.  W.  1050,  64  L.  R.  A.  119  (1902).  Only  the  fourth  section,  however,  was 
in  question.  It  was  rejected  expressly  in  Heaton  v.  Eldridge,  56  Ohio  St. 
87,  46  N.  E.  638,  36  L.  R.  A.  817,  60  Am.  St.  Rep.  737  (1897),  and  by  Town- 
send  V.  Hargraves.  118  Mass.  325  (1875),  which  hold  that  despite  a  difference 
of  phraseology,  both  sections  relate  to  the  remedy.  In  the  former  case,  how- 
ever, only  the  fourth  section  was  involved.  The  latter  turned  upon  the 
seventeenth  section,  but  involved  no  conflict. 

The  seventeenth  section  has  been  superseded  in  England  by  section  4  of 
the  Sales  of  Goods  Act  of  1893,  in  which  the  expression  "shall  not  be  en- 
forced by  action"   has  been  substituted. 

A  similar  distinction  has  been  made  with  reference  to  the  stamp  laws  of 
a  country.  If  under  the  local  law  the  want  of  a  stamp  relates  merely  to 
evidence,  the  contract  itself  being  valid,  the  lex  fori  will  govern ;  but,  if 
the  contract  under  the  law  of  the  place  where  it  is  made  is  void  for  want 
of  a  stamp,  no  action  will  lie  in  any  jurisdiction.  Alves  v.  Hodgson,  1797, 
7  T.  R.  241;  Brlstow  v.  Sequeville,  1850,  5  Exch.  275;  Ludlow  v.  Van  Ren- 
sselaer, 1  Johns.  (N.  Y.)  94  (180G) ;    Fant  v.  Miller,  17  Grat.  (Va.)  47  (1SG6). 

*A  part  of  the  opinion  only  is  given. 


Ch.  7)  FORM.  257 

der  the  sixth  section  of  our  statute,  which  corresponds  with  the  seven- 
teenth section  of  the  EngHsh  statute.  The  words  of  these  correspond- 
ing sections  are  different  from  those  of  the  fourth  in  the  Enghsh, 
and  the  fifth  section  in  the  Missouri,  statute.  They  are,  "that  no 
contract  shall  be  good,"  etc.  So  they  leave  application  for  the  rule 
of  law  that  a  contract,  valid  at  the  place  where  made,  shall  be  valid 
everywhere,  except  when  it  contravenes  the  policy,  or  is  in  dero- 
gation of  the  rights  of  the  country  where  it  is  sought  to  be  enforc- 


COCHRAN  v.  WARD. 

(Appellate  Court  of  Indiana,  1892.     5  Ind.  App.  89,  29  N.  E.  795,  51  Am.  St. 

Rep.  229.)  6 

Crumpacker,  J.  This  action  was  commenced  by  Cochran  against 
Ward  to  recover  damages  for  the  breach  of  a  parol  lease  for  lands  in 
the  state  of  Illinois.  The  complaint  alleges,  in  substance,  that  the 
defendant  was  the  owner  and  in  possession  of  a  tract  of  400  acres  of 
farm  land,  situated  in  Lawrence  county,  in  the  state  of  Illinois,  and 
on  the  20th  day  of  April,  1888,  said  defendant  rented  said  land  to  the 
plaintiff  for  the  term  of  one  year,  beginning  on  the  1st  day  of  July, 
1888,  and  agreed  to  surrender  the  possession  thereof  to  the  plaintiff  on 
that  day;  that  plaintiff  was  to  yield  and  pay  a  specified  share  of  the 
crop  as  rental ;  that  plaintiff'  relied  upon  said  agreement,  and  failed  to 
procure  other  land  to  cultivate  until  it  was  too  late  in  the  season  to  obtain 
any,  and  stood  ready  and  willing  to  perform  said  lease,  but  the  defend- 
ant wrongfully  refused  to  surrender  the  possession  of  said  premises,  as 
he  had  agreed,  and  refused  to  permit  plaintiff  to  cultivate  said  land,  but 
rented  a  great  portion  of  it  to  another,  whereby  plaintiff'  was  thrown  out 
of  employment,  and  lost  the  benefit  of  said  lease,  to  his  damage,  etc.  An 
answer  of  five  paragraphs  was  filed  to  the  complaint,  the  first  of 
which  was  the  general  denial.  The  fifth  alleged  that  the  agreement 
sued  upon  was  in  parol,  and  that  it  was  made  in  the  state  of  Illinois, 
where  the  defendant  lived,  and  the  real  estate  was  situate,  and  that 
under  the  Illinois  statute  of  frauds  the  agreement  was  not  enforceable. 
A  copy  of  section  1  and  2  of  the  statute  was  pleaded  with  this  para- 
graph. They  are  as  follows :  "Section  1.  Be  it  enacted  by  the  people 
of  the  state  of  Illinois,  represented  in  the  general  assembly,  that  no 
action  shall  be  brought  whereby  to  charge  any  executor  or  adimnis.- . 
trator  upon  any  special  promise  to  answer  any  debt  or  damages  out 

5 Accord:     Allen  v.  Schucbardt.  Fed.  Cas.  No.  236  (1861) ;    F.  W.  Brockman  • 
Commission  Co.  v.  Kilbourne,  111  Mo.  App.  542,  86  S.  W.  275  (1905). 

The  law  of  the  place  of  performance  seems  to  be  immaterial.     Perry  v.  Mt. 
Hope  Iron  Co.,  15  R.  I.  380,  5  Atl.  632,  2  Am.  St.  Rep.  902  (1886). 

6 Affirmed  on  petition  for  reheax-ing,  5  Ind.  App.  97,  31  N.  E.  581,  51  Am. 
St.  Rep.  229. 

LOB.CONF.L.— 17 


258  GENERAL  PROVISIONS.  (Part  1 

of  his  own  estate,  or  whereb}'  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default,  or  miscarriage  of  another 
person,  or  to  charge  any  person  upon  any  agreement  made  upon  consid- 
eration of  marriage,  or  upon  an  agreement  that  it  is  not  to  be  perform- 
ed within  the  space  of  one  year  from  the  making  thereof,  unless  the 
promise  or  agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereunto  by 
him  lawfully  authorized.  Sec.  2.  No  action  shall  ^be  brought  to  charge 
any  person  upon  any  contract  for  the  sale  of  lands,  tenements,  or  her- 
editaments, or  any  interest  in  or  concerning  them  for  a  longer  term 
than  one  year,  unless  such  contract,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereunto  by  him  lawfully  authorized 
in  writing,  signed  by  such  party.  This  section  shall  not  apply  to  sales 
upon  executions,  or  by  any  officer  or  person  pursuant  to  a  decree  or 
order  of  any  court  of  record  in  this  state."  The  issues  were  closed 
by  reply,  and  the  cause  tried  by  a  jury,  and  resulted  in  a  verdict  for 
the  plaintiff.  At  the  request  of  the  defendant  the  court  submitted  in- 
terrogatories to  the  jury,  which  they  answered,  and  the  court  gave 
judgment  in  favor  of  the  defendant  upon  the  interrogatories,  not- 
withstanding the  general  verdict. 

A  number  of  questions  relative  to  the  rulings  of  the  court  in  making 
the  issues  were  reserved  by  counsel  for  appellant,  but  the  issues  of 
fact  out  of  which  such  questions  arose,  having  been  all  decided  in 
appellant's  favor  by  the  jury,  we  cannot  regard  such  questions  as 
material  under  section  658,  Rev.  St.  1881.  The  controlling  question  in 
the  case  relates  to  the  action  of  the  court  in  awarding  appellee  judg- 
ment upon  the  special  findings.  The  jury  found  in  answer  to  the 
interrogatories  that  the  agreement  was  by  parol,  and  was  completed 
in  the  state  of  Illinois  on  the  20th  day  of  April,  1888,  and  purported 
to  lease  the  real  estate  described  in  the  complaint  for  one  year  from 
the  1st  day  of  July,  1888 ;  that  said  real  estate  was  in  the  state  of  Il- 
linois, and  the  agreement  was  to  have  been  performed  in  that  state. 
They  also  found  the  first  section  of  the  Illinois  statute,  as  set  out  with 
the  answer,  to  have  been  in  force  at  the  time  the  agreement  was  made. 
It  is  admitted  by  both  parties  in  the  argument  that  under  the  law  in 
Illinois  a  parol  agreement  to  lease  real  estate  for  the  term  of  a  year, 
to  begin  at  some  definite  time  in  the  future,  comes  within  the  pro- 
visions of  section  1  of  the  Illinois  statute,  and  consequently  is  not  en- 
forceable. So  tested  by  the  Illinois'  law,  the  agreement  in  suit  in  the 
case  before  us  is  voidable,  and  damages  could  not  be  recovered  for 
its  breach.  Wheeler  v.  Frankenthal,  78  111.  124;  Comstock  v.  Ward, 
22  111.  248 ;  Olt  v.  Lohnas,  19  111.  576.  The  fifth  clause  of  section  1 
of  our  statute  of  "frauds  and  perjuries"  (section  4904,  Rev.  St.  1881) 
provides  that  no  action  shall  be  brought  "upon  any  agreement  that 
is  not  to  be  performed  within  one  year  from  the  making  thereof,"  unless 


Ch.  7)  FORM.  259 

in  writing,  etc.  This  is  substantially  the  same  as  the  Illinois  provision, 
and  is  taken  from  the  English  statute  of  29  Car.  II.  c.  3.  But  our 
statute  permits  parol  leases  for  a  term  not  exceeding  three. years,  and 
it  is  the  settled  law  of  this  state  that  the  clause  above  quoted  has  no  ref- 
erence to  contracts  relating  to  real  estate.  Railsback  v.  Walke,  81  Ind. 
409;  Baynes  v.  Chastain,  68  Ind.  376;  Fall  v.  Hazelrigg,  45  Ind.  576, 
15  Am.  Rep.  278.  So  it  is  seen  that  the  agreement  in  controversy  is 
not  repugnant  to  any  provision  of  the  statute  of  this  state,  and  must 
be  held  good  if  the  laws  of  this  state  are  applicable.  With  considerable  S^i^w^  iP-m  t^  ^ 
force  and  ingenuity  counsel  for  appellant  contend  that  the  statute  of  r    o  o 

frauds  relates  entirely  to  the  remedy  and  procedure,  and  that  the  rule  *^'       \  {  '"  '^^^ 
is  universal  that  the  lex  fori  always  controls  in  such  matters.     This      nr*~^>-^r^-^ 
doctrine  was  announced  by  the  courts  as  applicable  to  personal  contracts  i,.  -^  ^-*>:  o«/»-^i^^ 
in  Leroux  v.  Brown,  12  C.  B.  801,  and  Downer  v.  Chesebrough,  36    .^  <^^.,^^jici^    -'vm-Ji 
Conn.  39,  4  Am.  Rep.  29.     It  seems  to  be  generally  admitted  that  the  '    ,    q         L^am^^ 
statute  of  frauds  does  not  render  an  agreement  absolutely  void,  but     ^ 
simply  witholds  the  power  of  enforcement  and  prevents  the  collection 
of  damages  for  non-performance.     The  rule  in  Indiana  and  Illinois  is 
the  same  in  this  respect.     Lowman  v.  Sheets,  124  Ind.  416,  24  N.  E. 
351,  7  L.  R.  A.  784;  Schierman  v.  Beckett,  88  Ind.  52;  Wills  v.  Ross, 
77  Ind.  1,  40  Am.  Rep.  279;  Morris  v.  Goodwin,  1  Ind.  App.  481, 
27  N.  E.  985;  Wheeler  v.  Frankenthal,  supra;  Collins  v.  Thayer,  74 
111.  138;  Chicago  Attachment  Co.  v.  Davis  Sewing  Mach.  Co.  (111.)  25 
N.  E.  669.   A  contract  made  in  another  state,  and  which  is  void  under  the 
laws  of  that  state,  will  not  be  enforced  in  this  state,  even  though  it  would 
have  been  good  if  made  here.    Keiwert  v.  Meyer,  62  Ind.  587,  30  Am. 
Rep.  206.    But  it  is  claimed  that  the  rule  applied  to  contracts  relating  to 
real  estate  is  different  from  that  applied  to  personal  contracts,  and  that 
the  former  are  governed  by  the  lex  loci  rei  sitae.    There  can  be  no  doubt 
of  the  correctness  of  this  rule  in  so  far  as  it  relates  to  questions  of  con- 
struction, title,  covenants  real,  mode  and  formality  of  execution,  and 
all  things  else  which  the  laws  of  the  situs  impress  upon  the  nature 
of  the  property,  and  the  character  of  the  tenure  and  mode  of  trans- 
mission.    But  where  a  conveyance  is  executed  in  this  state,  between 
citizens  of  this  state,  for  lands  in  another  state,  in  so  far  as  it  treats 
of  covenants  which  never  attach  to  the  soil,  but  are  essentially  personal, 
the  laws  of  this  state  control.     Jackson  v.  Green,  112  Ind.  341,  14  N. 
E.  89;  Bethell  v.  Bethell,  92  Ind.  318;  Fisher  v.  Parry,  68  Ind.  465; 
Craig  V.  Donovan,  63  Ind.  513.  n^   is^y^ 

But  it  is  insisted  that  as  to  mere  matters  of  procedure  every  forum  .  ■    ^  '=j^ 

must  apply  its  own  laws  and  rules,  regardless  of  the  character  of  the®^  *" 

action,  and  to  a  certain  extent  we  think  this  must  be  true.  In  the©  CvUc^  *it-^»^ 
case  before  us,  however,  under  the  findings  of  the  jury,  the  place  of 
the  contract  and  the  situs  are  the  same,  and  the  judgment  of  the  trial 
court  must  be  upheld,  unless  w^e  regard  the  statute  of  frauds  as  relat- 
ing merely  to  the  procedure,  and  not  as  aft"ecting  the  obligatory  charac- 
ter of  the  agreement.     It  is  impossible  to  consider  a  contract  separate- 


260 


GENERAL  PROVISIONS. 


(Part  1 


A 


^  ■ 


ly  from  the  remedy  given  by  the  law  for  its  enforcement,  because  it 
is  this  that  supplies  it  with  legal  vitality.  The  law  is  an  essential 
factor  in  every  contract,  and  is  presumed  to  be  considered  by  the  par- 
ties in  their  dehberations.  If  the  law  of  the  place  stamps  upon  an 
agreement  the  quality  that  it  shall  be  voidable,  and  that  its  perform- 
ance shall  be  a  pure  matter  of  conscience  or  grace  with  the  parties, 
that  quality  becomes  a  part  of  the  substance  of  the  agreement,  and 
characterizes  it  wherever  it  may  be.  A  right  without  a  remedy  for 
its  enforcement  is  a  mere  fiction.  Thus  it  was  said  by  Swayne,  J.,  for 
the  court,  in  Edwards  v.  Kearzey,  96  U.  S.  595,  24  L.  Ed.  793 :  "It 
is  also  the  settled  doctrine  of  this  court  that  the  laws  which  subsist  at 
the  time  and  place  of  making  a  contract  enter  into  and  form  a  part  of  it, 
as  if  they  were  expressly  referred  to  or  incorporated  in  its  terms.  This 
rule  embraces  alike  those  which  affect  its  validity,  construction,  dis- 
charge, and  enforcement."  At  another  place  in  the  opinion  the  learned 
judge  said :  "The  obligation  of  a  contract  includes  everything  within  its 
{obligatory  scope.  Among  these  elements  nothing  is  more  important  than 
|its  means  of  enforcement.  This  is  the  breath  of  its  vital  existence. 
IVithout  it  the  contract,  as  such,  in  the  view  of  the  law,  ceases  to  be,  and 
"alls  into  the  class  of  those  'imperfect  obligations,'  as  they  are  termed, 
'which  depend  for  their  fulfillment  upon  the  will  and  conscience  of 
those  upon  whom  they  rest.  The  ideas  of  right  and  remedy  are  in- 
^separable.  'Want  of  right  and  want  of  remedy  are  the  same  thing.'  " 
There  can  be  no  doubt,  we  think,  that  to  the  extent  that  the  remedy 
affects  the  validity  and  obligation  of  a  contract  it  is  imported  into  and 
becomes  an  essential  part  of  it,  and  characterizes  it  wherever  it  is 
the  subject-matter  of  litigation.  The  Illinois  statute  of  frauds  became 
part  of  the  agreement  in  suit,  and  the  provision  that  no  action  should 
be  maintained  for  damages  for  the  breach  of  the  agreement  became  as 
much  a  part  of  its  character  and  substance  as  if  specifically  incorpo- 
rated therein.  The  right  to  defend  against  a  contract  growing  out 
of  any  of  its  inherent  qualities  becomes  vested,  and  a  right  of  prop- 
erty, as  much  as  the  right  to  enforce  any  other  beneficial  provision. 
Pritchard  v.  Norton,  106  U.  S.  12-i,  1  Sup.  Ct.  102,  27  L.  Ed.  104; 
Cooley,  Const.  Lim.  362-369.  This  doctrine  does  not  conflict  with 
the  general  rule  that  in  matters  of  procedure  the  lex  fori  controls. 
"Procedure,"  in  this  connection,  applies  to  the  nature  of  the  action ;  as, 
whether  it  shall  be  covenant,  assumpsit,  debt,  etc.,  to  the  rules  of  plead- 
ing and  evidence,  the  order  and  manner  of  trial,  and  the  nature  and 
effect  of  process,  and  perhaps  to  all  other  matters  of  remedy  only, 
which  are  not  incorporated  into  the  contract  as  affecting  its  nature 
and  obligatory  character.  The  case  of  Leroux  v.  Brown,  supra,  hold- 
ing a  different  doctrine,  was  questioned  in  a  later  English  case,  and  is 
criticised  by  a  recent  English  writer.  Gibson  v.  Holland,  L.  R.  1  C.  P. 
1;  Maxw.  Int.  St.  (2d  Ed.)  p.  180.  The  case  of  Downer  v.  Chese- 
brough,  supra,  decides  only  that  the  lex  fori  should  supply  the  rules 
of  evidence.     In  the  case  of  Low  v.  Andrews,  1  Story  (U.  S.)  38,  Fed. 


Ch.  7)  FORM.  261 

Cas.  No.  8,559,  it  was  held  that  a  contract  for  the  sale  of  goods  in 

France,  if  vaHd  there,  would  be  enforced  in  this  country,  though  with-  _   ^ 


in  the  statute  of  frauds  here.  In  ^cudder  v.  Union3^at,_Bank^  91  U.  y>>  ^ 
S.  406,  23  L.  Ed.  245,  it  was  held  that  in  an  action  upon  the  parol  ac-^ 
ceptance  of  a  bill  of  exchange  to  be  performed  in  Missouri,  the  stat- 
ute of  frauds  of  the  place  of  the  contract  should  control,  as  it  affected 
the  formality  necessary  to  create  a  legal  obligation.  The  case  of 
Kling  V.  Fries,  33  Mich.  276,  was  an  action  in  Michigan  upon  a  con- 
tract for  the  sale  of  goods  in  Ohio.  It  was  held  that  the  Ohio  stat- 
ute of  frauds  applied.  The  case  of  Hoiightaling  v.  Ball,  19  Mo.  84, 
59  Am.  Dec.  331,  was  an  action  in  Missouri  upon  a  contract  for  the 
sale  of  wheat  to  be  delivered  in  the  state  of  Illinois.  It  was  decided 
that  the  Illinois  statute  of  frauds  obtained.  The  case  of  Anderson  v. 
May,  10  Heisk.  (Tenn.)  84,  was  an  action  in  Tennessee  upon  a  lease 
for  lands  in  Arkansas.  The  court  decided  that  the  statute  of  frauds 
of  the  latter  state  should  be  allowed  to  control  the  contract.  Denny 
V.  Williams,  5  Allen  (Mass.)  1,  was  an  action  in  Massachusetts,  upon 
a  contract  for  the  sale  of  wool  in  New  York,  and  the  defendant  set  up 
the  New  York  statute  of  frauds.  The  court  held  the  answer  good,  say- 
ing: "As  the  contract  was  made  in  the  city  of  New  York,  and  was 
to  be  performed  there,  the  laws  of  the  state  of  New  York  must  govern 
us  in  respect  to  its  construction  and  performance."  The  Supreme 
Court  of  Louisiana,  in^Vidarv.  Thompson,  11  Mart.  (La.)  23,  said:. 
"An  instrument,  as  to  its  form  and  the  formalities  attending  its  execu- 
tion, must  be  tested  by  the  laws  of  the  place  where  it  was  made."  In 
the  case  of  Pickering  v.  Fisk,  6  Vt.  102,  the  court  used  this  language : 
"As  to  the  requisites  of  a  valid  contract,  the  mode  of  authentication, 
the  forms  and  ceremonies  required,  and,  in  general,  as  to  everything 
which  is  necessary  to  perfect  or  consummate  the  contract,  the  lex  loci 
contractus  governs,  though  with  respect  to  conveyances  or  other  con- 
tracts relating  to  real  estate  the  statutory  regulations  of  the  place  where 
such  estate  is  situated  must  be  observed."  The  same  principle  was  ap-  c^A^^ 
plied  in  the  following  cases :  Hallgarten  v.  Oldham,  135  Mass.  1,  40  ^^_^ 
Am.  Rep.  433 ;  Dacosta  v.  Davis,  24^ N.  J.  Law,  319;  Gross  v.  JordaiT^ 
83  Me.  380,  22  Atl.  250;  Butters  v.  Glass,  31  U.  C.  Q.  B.  379;  Van 
Reimsdyk  v.  Kane,  1  Gall.  630,  Fed.  Cas.  No.  16,872;  R.  Co.  v.  Glenn, 
28  Md.  287,  92  Am.  Dec.  688 ;  Fox  v.  Matthews,  33  Miss.  433  ;  Young 
V  Pearson.  1  Cal.  448 :  .Wilcox  Silver  Plate  Co.  v.  Green,  72  N.  Y. 
""TT!  There  is  no  analogy  between  cases  like  the  one  before  us  and 
cases  in  which  the  bar  of  prescription  has  become  complete  against 
a  demand.  In  the  latter  it  is  a  question  of  presumptive  payment  or 
extinguishment,  and  such  presumption,  while  evidential,  is  made  con- 
clusive as  a  measure  of  public  policy,  while  in  the  former  it  is  a  ques- 
tion whether  there  ever  was  a  legal  liability.  It  should  be  kept  in  mind 
in  this  case  that  the  controversy  is  between  the  lex  fori  upon  the  one 
hand  and  the  lex  loci  contractus  and  the  lex  rei  sitae  upon  the  other; 
consequently  we  have  maintained  no  distinction  between  the  latter, 


262  GENERAL  PROVISIONS.  (Part  1 

nor  between  actions  real  and  personal.  There  was  no  error  in  award- 
ing appellee  judgment  upon  the  special  findings.  Nor  was  there  any 
error  in  permitting  the  law  to  be  read  from  the  statute  book  purport- 
ing to  have  been  printed  by  authority.  This  is  authorized  by  section 
457,  Rev.  St.  1881. 
The  judgment  is  affirmed.'' 


SCUDDER  V.  UNION  NAT.  BANK  OF  CHICAGO. 

(Supreme  Court  of  the  United  States,  1875.    91  U.  S.  406,  2.3  L.  Ed.  245.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Illinois. 

Hunt,  J.®  *  *  *  Upon  the  merits,  the  case  is  this :  The  plain- 
tiff below  sought  to  recover  from  the  firm  of  Henry  Ames  &  Co.,  of 
St.  Louis,  Mo.,  the  amount  of  a  bill  of  exchange,  of  which  the  fol- 
lowing is  a  copy,  viz. : 

"$8,125.00.  Chicago,  July  7,  1871. 

"Pay  to  the  order  of  Union  National  Bank-^'^^m 'thousand  one 
hundred  and  twenty-five  dollars,  value  received,  and  charge  to  account 
of  Leland  &  Harbach.  (M^«At 

-   %uu*J^^'^  •  "To  Messrs.  Henry  Ames  &  Co.,  St.  Louis,  Mo." ((itayt/v<c  y o^cA^^-^jC^k^ 

^^  By  the  direction  of  Ames  &  Co.,  Leland  &  Harbach  had  bought 

for  them,  and  on  the  7th  day  of  July,  1871,  shipped  to  them  at  St. 
Louis,  500  barrels  of  pork,  and  gave  their  check  on  the  Union  Bank 
to  Hancock,  the  seller  of  the  same,  for  $8,000. 

Leland  &  Harbach  then  drew  the  bill  in  question,  and  sent  the  same 
by  their  clerk  to  the  Union  Bank  (the  plaintiff  below)  to  be  placed 
to  their  credit.  The  bank  declined  to  receive  the  bill,  unless  accom- 
panied by  the  bill  of  lading  or  other  security.  The  clerk  returned, 
and  reported  accordingly  to  Leland  &  Harbach.  One  of  the  firm  then 
directed  the  clerk  to  return  to  the  bank,  and  say  that  Mr.  Scudder, 
one  of  the  firm  of  Ames  &  Co.  (the  drawees),  was  then  in  Chicago, 
and  had  authorized  the  drawing  of  the  draft;    that  it  was   drawn 

7 Accord:  Miller  v.  Wilson,  146  111.  523,  34  N.  E.  1111,  37  Am.  St.  Rep.  18G 
(1893).      ■  ■ 

Where  the  lex  rei  sita?  «nd  the  lex  loci'  contractus  do  not  coincide,  the 
former  has  been  held  to  apply.  Meylink  v.  Rhea,  123  Iowa,  310,  98  N.  W. 
779  (1904).  The  lexloci  contractus  et  fori,  however,  has  been  held  to  ex- 
clude the  lex  rei  sitai  et  solutionis  with  regard  to  personal  property.  Da- 
costa  V.  Davis,  24  N.  .7.  Law,  319  (1854). 

The  statute  of  frauds  of  the  forum  may  establish  a  policy  which  a  foreign 
contract  will  not  be  permitted  to  override.  Emery  v.  Bnrbanls,  103  Mass. 
326,  39  N.  E.  1020,  28  L.  R.  A.  57,  47  Am.  St.  Rep.  456  (1895). 

As  to  the  statute  of  frauds  in  general,  see  19  L.  R.  A,  792-794 ;  64  L. 
R.  A.  119-124. 

8  The  statement  of  facts  and  a  part  of  opinion  have  been  omitted. 


Ch.  T) 


FORM. 


2G3 


against  500  barrels  of  pork  that  day  bought  by  Leland  &  Harbach 
for  them,  and  duly  shipped  to  them.  The  clerk  returned  to  the  bank, 
and  made  this  statement  to  its  vice  president;  who  thereupon,  on  the 
faith  of  the  statement  that  the  bill  was  authorized  by  the  defendants, 
discounted  the  same,  and  the  proceeds  were  placed  to  the  credit  of. 
Leland  &  Harbach.  Out  of  the  proceeds  the  check  given  to  Hancock 
for  the  pork  was  paid  by  the  bank. 

The  direction  to  inform  the  bank  that  J\Ir.  Scudder  was  in  Chicago 
and  had  authorized  the  drawing  of  the  draft  was  made  in  the  presence 
and  in  the  hearing  of  Scudder,  and  without  objection  by  him. 

The  point  was  raised  in  various  forms  upon  the  adm^ission  of  evi- 
dence, and  by  the  charge  of  the  judge,  whether,  upon  this  state  of 
facts,  the  firm  of  Ames  &  Co.,  the  defendants,  were  liable  to  the 
bank  for  the  amount  of  the  bill.  The  jury,  under  the  charge  of  the 
judge,  held  them  to  be  liable;  and  it  is  from  the  judgment  entered 
upon  that  verdict  that  the  present  writ  of  error  is  brought. 

The  question  is  discussed  in  the  appellant's  brief,  and  properly,  as  if 
the  direction  to  the  clerk  had  been  given  by  Scudder  in  person.  The 
jury  were  authorized  to  consider  the  direction  in  his  name,  in  his 
presence  and  hearing,  without  objection  by  him,  as  made  by  himself. 

The  objection  relied  on  is,  that  the  transaction  amounted  at  most  to 
a  parol  promise  to  accept  a  bill  of  exchange  then  in  existence.  It  is 
insisted  that  such  a  promise  does  not  bind  the  defendants. 

The  suit  to  recover  upon  the  alleged  acceptance,  or  upon  the  refusal 
to  accept,  being  in  the  state  of  Illinois,  and  the  contract  having  been 
made  in  that  state,  the  judgment  is  to  be  given  according  to  the  law 
of  that  state.  The  law  of  the  expected  place  of  performance,  should 
there  be  a  difference,  yields  to  the  lex  fori  and  the  lex  loci  contractus. 

In  Wheaton  on  Conflict  of  Laws,  §  401p,  the  rule  is  thus  laid  down : 
"Obligations,  in  respect  to  the  mode  of  their  solemnization,  are  sub- 
ject to  the  rule  locus  regit  actum;  in  respect  to  their  interpretation, 
to  the  lex  loci  contractus;  in  respect  to  the  mode  of  their  performance, 
to  the  law  of  the  place  of  their  performance.  But  the  lex  fori  deter- 
mines when  and  how  such  laws,  when  foreign,  are  to  be  adopted,  and, 
in  all  cases  not  specified  above,  supplies  the  applicatory  law."  Miller 
V.  Tiffany,  1  Wall.  310,  17  L.  Ed.  540;  Chapman  v.  Robertson,  G 
Paige  (N.  Y.)  634,  31  Am.  Dec.  264;  Andrews  v.  Pond,  13  Pet.  78, 
10  L.  Ed.  61 ;  Lanusse  v.  Barker,  3  Wheat.  147,  4  L.  Ed.  343 ;  Adams 
V.  Robertson,  37  111.  59;  Ferguson  v.  Fuffe,  8  C.  &  F.  121;  Bain  v. 
Whitehaven  &  Furness  Junction  Ry.  Co.,  3  H.  L.  Cas.  1 ;  Scott  v. 
Pilkington,  15  Abb.  Prac.  (N.  Y.)  280;  Story,  Confl.  Laws,  203;  Dc 
Wolf  v.  Johnson,  10  Wheat.  383,  6  L.  Ed.  343'. 

The  rule  is  often  laid  down,  that  the  law  of  the  place  of  performance 
governs  the  contract. 

Mr.  Parsons,  in  his  treatise  on  Notes  and  Bills,  uses  this  language: 
"If  a  note  or  bill  be  made  payable  in  a  particular  place,  it  is  to  be 


cyu 


iWXJu^ 


264  GENERAL  PROVISIONS.  (Part  1 

treated  as  if  made  there,  without  reference  to  the  place  at  which  it 

.  is  written  or  signed  or  dated."    Page  324. 

^^^|,*^.^.y*«v>      <^  jTqi-  ^j^e  purposes  of  payment,  and  the  incidents  of  payment,  this 

yc^-yt*^^^  \  ^  Y'^*^  is  a  sound  proposition.     Thus  the  bill  in  question  is  directed  to  par- 

^^.  (y^iJo  ties  residing  in  St.  Louis,  Mo.,  and  contains  no  statement  whether  it 

*A  Ift^V^"*^^  ig  payable  on  time  or  at  sight.     It  is,  in  law,  a  sight  draft.     Whether 

a  sight  draft  is  payable  immediately  upon  presentation,  or  whether 

days  of  grace  are  allowed,  and  to  what  extent,  is  differently  held  in 

different  states.     The  law  of  Missouri,  where  this  draft  is  payable, 

determines  that  question  in  the  present  instance. 

The  time,  manner,  and  circumstances  of  presentation  for  acceptance 
or  protest,  the  rate  of  interest  when  this  is  not  specified  in  the  bill 
(Young  V.  Harris,  14  B.  Mon.  [Ky.]  556,  61  Am.  Dec.  170;  Pomeroy 
V.  Ainsworth,  22  Barb.  [N.  Y.]  118),  are  points  connected  with  the 
payment  of  the  bill,  and  are  also  instances  to  illustrate  the  meaning  of 
the  rule,  that  the  place  of  performance  governs  the  bill. 

The  same  author,  however,  lays  down  the  rule,  that  the  place  of 
making  the  contract  governs  as  to  the  formalities  necessary  to  the 
validity  of  the  contract.  Page  317.  Thus,  whether  a  contract  shall 
be  in  writing,  or  may  be  made  by  parol,  is  a  formality  to  be  determined 
by  the  law  of  the  place  where  it  is  made.  If  valid  there,  the  contract 
is  binding,  although  the  law  of  the  place  of  performance  may  require 
the  contract  to  be  in  writing.    Dacosta  v.  Davis,  24  N.  J.  Law,  319. 

So  when  a  note  was  indorsed  in  New  York,  although  drawn  and 
made  payable  in  France,  the  indorsee  may  recover  against  the  payee 
and  indorser  upon  a  failure  to  accept,  although  by  the  laws  of  France 
such  suit  cannot  be  maintained  until  after  default  in  payment,  Aymar 
v.  Sheldon,  12  Wend.  (N.  Y.)  439,  27  Am.  Dec.  137. 

So  if  a  note,  payable  in  New  York,  be  given  in  the  state  of  Illinois 
for  money  there  lent,  reserving  ten  per  cent,  interest,  which  is  legal 
-«  in  that  state,  the  note  is  valid,  although  but  seven  per  cent,  interest  is 

allowed  by  the  laws  of  the  former  state.  Aliller  v.  Tiffany,  1  Wall. 
310,  17  L.  Ed.  540;  Qepeau  v.  Humphreys,  8  Mart.  (N.  S.)  1;  Chap- 
man v.  Robertson,  6  Paige  (N.  Y.)  634,  31  Am.  Dec.  264;  Andrews 
V.  Pond,  13  Pet.  65,  10  L.  Ed.  61. 
f  Matters  bearing  upon  tl\e  execution,  the  interpretation,  and  the 
validity  of  a  contract  are  determined  by  the  law  of  the  place  where 
the  contract  is  made.  Matters  connected  with  its  performance  are 
regulated  by  the  law  prevailing  at  the  place  of  performance.  Matters 
respecting  the  remedy,  such  as  the  bringing  of  suits,  admissibility 
of  evidence,  statutes  of  limitation,  depend  upon  the  law  of  the  place 
where  the  suit  is  brought. 

A   careful    examination    of   the    well-considered    decisions   of   this 
.  country  and  of  England  will  sustain  these  positions. 
^       There  is  no  statute  of  the  state  of  Illinois  that  requires  an  acceptance 
''    of  a  bill  of  exchange  to  be  in  writing,  or  that  prohibits  a  parol  prom- 
ise to  accept  a  bill  of  exchange:    on  the  contrary,  a  parol  acceptance 


Ch.  7)  FORM.  265 

and  a  parol  promise  to  accept  are  valid  in  that  state,  and  the  deci- 
sions of  its  highest  court  hold  that  a  parol  promise  to  accept  a  bill  is 
an  acceptance  thereof.  If  this  be  so,  no  question  of  jurisdiction  or  of 
conflict  of  laws  arises.  The  contract  to  accept  was  not  only  made  in 
Illinois,  but  the  bill  was  then  and  there  actually  accepted  in  Illinois, 
as  perfectly  as  if  Mr,  Scudder  had  written  an  acceptance  across  its 
face,  and  signed  thereto  the  name  of  his  firm.  The  contract  to  accept 
the  bill  was  not  to  be  performed  in  Missouri.  It  had  already,  by  the 
promise,  been  performed  in  Illinois.  The  contract  to  pay  was,  indeed, 
to  be  performed  in  Missouri;  but  that  was  a  different  contract  from 
that  of  acceptance.  Nelson  v.  First  Nat.  Bank,  48  Bl.  39,  95  Am. 
Dec.  510 ;  ^lason  v.  Dousay,  35  111.  434,  85  Am.  Dec.  368 ;  Jones  v. 
Council  Bluffs  Branch  of  State  Bank,  34  111.  319,  85  Am.  Dec.  306. 

Unless  forbidden  by  statute,  it  is  the  rule  of  law  generally,  that  a 
promise  to  accept  an  existing  bill  is  an  acceptance  thereof,  whether 
the  promise  be  in  writing  or  by  parol.  Wynne  v.  Raikes,  5  East, 
5M;  Bank  of  Ireland  v.  Archer,  11  M.  &  W.  383;  Hough  v.  Loring, 
24  Pick.  (Mass.)  254;  Ward  v.  Allen,  2  Mete.  (Mass.)  53,  35  Am. 
Dec.  387 ;  Bank  of  Rutland  v.  Woodruff,  34  Vt.  92 ;  Spaulding  v.  An- 
drews, 48  Pa.  411;  Williams  v.  Winans,  14  N.  J.  Law,  339;  Storer 
V.  Logan,  9  Mass.  56 ;  Byles  on  Bills,  §  149 ;  Barney  v.  Worthiiigton, 
37  N.  Y.  112.    See  the  Illinois  cases  cited,  supra.     *     *     * 

These  principles  settle  the  present  case  against  the  appellants. 

It  certainly  does  not  aid  their  case,  that  after  assuring  the  bank, 
through  the  message  of  Leland  &  Harbach,  that  the  draft  was  drawn 
against  produce  that  day  shipped  to  the  drawees,  and  that  it  was  drawn 
by  the  authority  of  the  firm  (while,  in  fact,  the  produce  was  shipped 
to  and  received  and  sold  by  them),  and  that  the  bank  in  reliance  upon 
this  assurance  discounted  the  bill,  Mr.  Scudder  should  at  once  have 


^ 


telegraphed  his  firm  in  St.  Louis  to  delay  payment  of  the  draft,  and,  vJ*^^*^*^  q/^^ 

by  a  subsequent  telegram,  should  have  directed  them  not  to  pay  it.  ^'*'^\L^  *^V^ 

The  judgment  must  be  affirmed.  r>^*'^^^'Li^  ''^y  ^^ 

lA-u^    ^  ^  HALL  V.  CORDELL.  ^    JiX^ 

(Supreme  Court  of  the  United  States,  1891.    142  U.  S.  116,  12  Sup.  Ct.  154,  35    ^^      ^^^^ ' .^'^ ' 

L.  Ed.  950.)  ^^.^^ 

The  case  was  stated  by  the  court  as  follows:  'to(^f^''        '^*^^^  u 

This  was  an  action  of  assumpsit.     It  was  based  upon  an  alleged   ^^  i^       ^  ^^ 


assumpsit.     It  was  based  upon  an  alleged  ^^\^      ^ 

verbal  agreement  made  on  or  about  April  1,  1886,  at  Marshall,  Mo.,  ^^^''^ •  J(f^  i, 

between  the  defendants  in  error,  plaintiffs  below,  doing  business  at  ^^\i-,  ^^ 
that  place  as  bankers,  under  the  name  of  Cordell  &  Dunnica,  and  the 

plaintiffs  in  error,  doing  business  at  the  Union  Stockyards,  Chicago,  _    ijto-^* 
111.,  under  the  name  of  Hall  Bros.  &  Co.     There  was  a  verdict  and 


,  _ _._ :^^c^' 

judgment  in  favor  of  the  plaintiffs  for  $5,785.79.  .^V*^^^^*^    ^^^^' 


266  GENERAL  PROVISIONS.  (Part  1 

The  alleged  agreement  was,  in  substance,  that  Hall  Bros.  &  Co. 
would  accept  and  pay,  or  pay  on  presentation,  all  drafts  made  upon 
them  by  one  George  Farlow,  in  favor  of  Cordell  &  Dunnica,  for  the 
cost  of  any  live  stock  bought  by  Farlow  and  shipped  by  him  from  Mis- 
souri to  Hall  Bros.  &  Co.  at  the  Union  Stockyards  at  Chicago. 

There  was  proof  before  the  jury  tending  to  show  that,  on  or  about 
July  13,  1886,  Farlow  shipped  from  Missouri  9  car  loads  of  cattle  and 
1  car  load  of  hogs,  consigned  to  Hall  Bros.  &  Co.  at  the  Union  Stock- 
yards, Chicago;  that  such  cattle  and  hogs  were  received  by  the  con- 
signees, and  by  them  were  sold  for  account  of  Farlow;  that,  out  of 
the  proceeds,  they  retained  the  amount  of  the  freight  on  the  shipment, 
the  expenses  of  feeding  the  stock  on  the  way  and  at  the  stockyards,  the 
charges  at  the  yards  and  of  the  persons  who  came  to  Chicago  with  the 
stock,  the  commissions  of  the  consignees  on  the  sale,  the  amount  Far- 
low  owed  them  for  moneys  paid  on  other  drafts  over  and  above  the 
net  proceeds  of  live  stock  received  and  sold  for  him  on  the  market, 
and  $2,000  due  from  Farlow  to  Hall  Bros.  &  Co.  on  certain  past-due 
promissory  notes  given  for  money  loaned  to  him;  that,  at  the  time  of 
the  above  shipment,  Farlow,  at  Marshall,  Mo.,  the  place  of  agreement, 
made  his  draft,  of  date  July  13,  1886,  upon  Hall  Bros.  &  Co.,  at  the 
Union  Stockyards,  Chicago,  in  favor  of  Cordell  &  Dunnica,  for  $11,- 
274,  the  draft  stating  that  it  was  for  the  9  car  loads  of  cattle  and  1 
car  load  of  hogs ;  that  this  draft  was  discounted  by  Cordell  &  Dunnica, 
and  the  proceeds  placed  to  Farlow's  credit  on  their  books;  that  the 
proceeds  were  paid  out  by  the  plaintififs  on  his  checks  in  favor  of  the 
parties  from  whom  he  purchased  the  stock  mentioned  in  the  draft, 
and  for  the  expenses  incurred  in  the  shipment;  that  the  draft  covered 
only  the  cost  of  the  stock  to  Farlow;  that,  upon  its  presentation  to 
Hall  Bros.  &  Co.,  they  refused  to  pay  it,  and  the  same  was  protested 
for  nonpayment;  and  that  subsequently  Cordell  &  Dunnica  received 
from  Hall  Bros.  &  Co.  only  the  sum  of  $5,936.55,  the  balance  of  the 
proceeds  of  the  sale  of  the  above  cattle  and  hogs,,  consigned  to  them 
as  stated,  after  deducting  the  amounts  retained  by  the  consignees  out 
of  such  proceeds  on  the  several  accounts  above  mentioned. 

The  contract  sued  upon  having  been  made  in  Missouri,  the  defend- 
ant contended  that  it  was  invalid  under  the  statutes  of  that  state  which 
are  cited  in  the  opinion  of  the  court,  infra,  and  could  not  be  made  the 
basis  for  a  recovery  in  Illinois.  This  contention  being  overruled,  the 
defendant  excepted,  and,  judgment  having  been  given  for  the  plain- 
tiff, sued  out  this  writ  of  error. 

Harlan,  J.  There  was  evidence  on  behalf  of  the  defendants  tend- 
ing to  show  that  no  such  agreement  was  made  as  that  alleged.  But 
the  issues  of  fact  were  fairly  submitted  to  the  jury,  and  we  niusl_as- 
sume,  onthi.$3vrit  of  error,,  that  the^jury  found  from  thejevidfiliccjliat 
tlie  alleged  agreement_was  made  l^ctween  the  parties. 


Our  examination  must  be  restricted  to  the  questions  of  law  involved 
in  the  rulings  of  the  court  below.     And  the  only  one  which,  in  our 


Ch.  7) 


FORM. 


267 


judgment,  it  is  necessary  to  notice,  is  that  arising  upon  the  instruc- 
tions asked  by  the  defendant,  and  which  the  court  refused  to  give,  to 
the  effect  that  the  agreement  in  question,  having  been  made  in  Mis- 
souri, and  not  having  been  reduced  to  writing,  was  invaHd  under  the 
statutes  of  that  state,  and  could  not  be  recognized  in  IlHnois  as  the 
basis  of  an  action  there  against  the  defendants. 

The  statute  of  ^Missouri  referred  to  is  as  follows:  "Sec.  533.  No 
person  within  this  state  shall  be  charged  as  an  acceptor  of  a  bill  of 
exchange,  unless  his  acceptance  shall  be  in  writing,  signed  by  himself 
or  his  lawful  agent.  Sec.  534.  If  such  acceptance  be  written  on  a 
paper  other  than  the  bill,  it  shall  not  bind  the  acceptor,  except  in  favor 
of  a  person  to  whom  such  acceptance  shall  have  been  shown,  and  who. 
upon  the  faith  thereof,  shall  have  received  the  bill  for  a  valuable  con- 
sideration. Sec.  5.35.  An  unconditional  promise,  in  writing,  to  ac- 
cept a  bill  before  it  is  drawn,  shall  be  deemed  an  actual  acceptance 
in  favor  of  every  person  to  whom  such  written  promise  shall  have  been 
shown,  and  who  upon  the  faith  thereof  shall  have  received  the  bill 
for  a  valuable  consideration.  Sec.  536.  Every  holder  of  a  bill,  present- 
ing the  same  for  acceptance,  may  require  that  the  acceptance  be  written 
on  the  bill;  and  a  refusal  to  comply  with  such  request  shall  be  deemed 
a  refusal  to  accept,  and  the  bill  may  be  protested  for  non-acceptance. 
Sec.  537.  The  preceding  sections  shall  not  be  construed  to  impair  the 
right  of  any  person  to  whom  a  promise  to  accept  a  bill  may  have  been 
made,  and  who  on  the  faith  of  such  promise  shall  have^awn  or  nego^^ 
tiated  the  bill,  to  recover  damages  of  the  party  making  such  promise,  on 
his  refusal  to  accept  such  bill."  1  Wag.  St.  1873,  p.  214;  1  Rev.  St. 
Mo.  1879,  p.  84;  1  Rev.  St.  Mo.  1889,  p.  253. 

The  contention  of  theplaintififs Jn  error  is^that  the  rights  of  the 


parties  are  to  be  determined  by__the  law  of  the  place  where  the  alleged 
agreeme_nt  was  iBa4e.  Tf-ttTTs  be  so,  itlriay  be' that  the  TudgnTenTcould" 
not  be  sustained;  for  the  .stafrite_nf  Mi^gl211li-^"^r^^^^^y~^^€ku:£s  that 
no  person  wiHi2ri_J:hat  stafe"""^Tall  be  charged  ^S  ^^  acceptor  of  a  bilj 
of  excTTange~unless  his  acce2tance  be^JiL  writino-.  And  the_statul£^_as_ 
construePPbv^fhe  highest_courtof^31is^QUti,_j£t^mlly'£t^  within 

its  inhibitions  an^-a€ti-Qa_iip£HL_a  parol__promise  to  accept  a  biH^jexcept 
as  providedlrTsection  537.  Flato  v.  Mulhall,  72  Mo.  522,  526;  Rousch 
v.  Duff,  35  Mo.  3i2^"-?14.  But,  if  the  law  of  Missouri  governs,  this 
action  could  not  be  maintained  under  that  section,  because,  as  held 
in  Flato  V.  Mulhall,  above  cited,  the  plaintiffs,  being  the  payees  in 
the  bill  drawn  by  Farlow  upon  Hall  Bros.  &  Co.,  could  not,  within 
the  meaning  of  the  statute,  be  said  to  have  "negotiated"  it.  The  Alis- 
souri  statute  is  a  copy  of  a  New  York  statute,  in  respect  to  which 
Judge  Duer,  in  Blakiston  v.  Dudley,  5  Duer  (N.  Y.)  373,  377,  said: 
"We  think  that  to  negotiate  a  bill  can  only  mean  to  transfer  it  for 
value,  and  that  it  is  a  solecism  to  say  that  a  bill  has  been  negotiated 
by  a  payee  who  has  never  parted  with  its  ownership  or  possession. 
The  fact  that  the  plaintiffs  had  given  value  for  the  bill  when  they 


■x^-^ 


<i^;> 


268  GENERAL  PROVISIONS.  (Part  1 

received  it  only  proves  its  negotiation  by  the  drawer — its  negotiation 
to,  and  not  by,  them.  *  *  *  Their  putting  their  names  upon  the 
back  of  the  bill  was  not  an  indorsement,  but  a  mere  authority  to  the 
agent  whom  they  employed  to  demand  its  acceptance  and  payment. 
The  manifest  intention  of  the  legislature  in  section  10  [similar  to  sec- 
tion 537  of  the  Missouri  statutes]  was  to  create  an  exception  in  favor 
of  those  who,  having  transferred  a  bill  for  value,  on  the  faith  of  the 
promise  of  the  drawee  to  accept  it,  have,  in  consequence  of  his  re- 
fusal to  accept,  been  rendered  liable,  and  been  subjected  to  damages, 
as  drawers  or  indorsers."  The  plain|iffs_iii_error,  therefore,  cannot 
rest  th^iiL^^ase  upon  sectioii_537. 
^JlIv^*''^  W^  ^^^y  howeyer,  of  opinion  that,  upon  principle  and  authority, 

(T  the  rights  of  the  p^Tties~arejTptTo7be  determmed  "by  the  laW  ofTMis- 

souTu  The  ^tatlite^oFTIiat  state  can  have  no  application  to  an  action 
Brought  to  charge  a  person  in  Illinois  upon  a  parol  promise  to  accept 
and  pay  a  bill  of  exchange  payable  in  Illinois.  The  agreement  to  ac- 
cept and  pav.  or  to  pav  upon  presentation.  wasJxLiae^entTrely^erformed 
in  Illinois,  which  was  the_state  of  the  residence  and  place  of  business 
of  the  defendants.  They  wel^e^lTDlrbouhd  to^accept  or  pay  elsewhere 
than  at  the  place  to  which,  by  the  terms  of  the  agreement,  the  stock 
was  to  be  shipped.  Nothing  in  the  case  shows  that  the  parties  had  in 
view,  in  respect  to  the  execution  of  the  contract,  any  other  law  than 
the  law  of  the  place  of  performance.  That  law,  consequently,  must 
determine  the  rights  of  the  parties.  Coghlan  v.  South  Carolina  R. 
Co.,  142  U.  S.  101,  12  Sup.  Ct.  150,  35  L.  Ed.  951,  and  the  authorities 
there  cited.  In  this  connection  it  is  well  to  state  that  in  New  York  & 
Virginia  State  Stock  Bank  v.  Gibson,  5  Duer,  583,  a  case  arising  under 
the  statute  of  New  York  above  referred  to,  the  court  said:  "Those 
provisions  manifestly  embrace  all  bills,  wherever  drawn,  that  are  to 
be  accepted  and  paid  within  this  state;  and,  were  the  terms  of  the 
statute  less  explicit  than  they  are,  the  general  rule  of  law  would  lead 
us  to  the  same  conclusion — that  the  validity  of  a  promise  to  accept 
a  bill  of  exchange  depends  upon  the  law  of  the  place  where  the  bill 
is  to  be  accepted  and  paid."  Citing  Boyce  v.  Edwards,  4  Pet.  Ill,  7 
L.  Ed.  799. 

Looking,  then^at  the  law  of  Illinois,  there  isjio^liffirulty  in  holding 


that  the  defendants  were  liabTFTor~arl5T^acTi_iilJhei£_pa^ 
made  irTMissouri,  to  accept  ancTpay,  or  to  jtay  upaixj)resentation^in 
Illinois,  the  biUs  drawn^by~~FariDw7~pirrsuant  to  that  agreement,  in 
favor  of  the  plaintiffs.  It  was  held  in  Scudder  v.  Union  Nat.  Bank, 
91  U.  S.  406,  413,  23  L.  Ed.  245,  that  in  Illinois  a  parol  acceptance 
of,  or  a  parol  promise  to  accept,  upon  a  sufficient  consideration,  a 
bill  of  exchange,  was  binding  on  the  acceptor.  Mason  v.  Dousay,  35 
141.  424,  433,  85  Am.  Dec.  368 ;  Nelson  v.  First  Nat.  Bank,  48  111.  36, 
40,  95  Am.  Dec.  510;  Sturges  v.  Fourth  Nat.  Bank,  75  111.  595;  St. 
Louis  Nat.  Stock- Yards  v.  O'Reilly,  85  111.  546,  551. 

The  views  we  have  expressed  were  substantially  those  upon  which 


Ch.  7)  '  FORM.  2G9 

the  court  below  proceeded  in  its  refusal  of  the  defendants'  requests 
for  instructions,  as  well  as  in  its  charge  to  the  jury.  The  suggestion 
that  there  was  a  material  variance  between  the  averments  of  the  orig- 
inal and  amended  declaration,  and  the  proof  adduced  by  the  plaintiffs, 
is  without  foundation.  The  real  issue  was  fairly  submitted  to  the  jury, 
and  their  verdict  must  stand. 
Judgment  affirmed.® 


UNITED  STATES  v.  CROSBY. 
(Supreme  Court  of  the  United  States,  1812.    7  Cranch,  115,  3  L.  Ed.  287.) 

Story,  J.  A  writ  of  intrusion  was  brought  by  the  United  State=. 
against  the  defendant  in  error  to  recover  possession  of  an  undivided 
part  of  certain  land  lying  within  the  district  of  Maine.  Upon  the 
trial  of  the  cause  in  the  District  Court  of  that  district,  a  special  ver- 
dict was  found  by  the  jury,  upon  which  the  same  court  gave  judg- 
ment in  favor  of  the  defendant  in  error.  This  judgment  was  after- 
wards affirmed  in  the  Circuit  Court  of  Massachusetts,  and  is  now  be- 
fore the  Supreme  Court  for  a  final  decision. 

By  the  special  verdict  it  appears  that  the  claim  of  the  United  States 
to  the  land  in  controversy  is  under  one  Nathaniel  Dowse,  who  derived 
his  title,  if  any,  from  an  instrument  stated  at  large  in  the  same  ver- 
dict, and  executed  in  his  favor  by  one  John  Nelson.  The  instrument 
is  without  a  seal  and  was  executed  at  the  Island  of  Grenada,  in  the 
West  Indies,  before  a  notary  public,  according  to  the  mode  prescribed, 
by  the  existing  laws,  to  pass  real  estate  in  that  colony — and  both  par- 
ties were  at  that  time  residents  therein. 

By  the  laws  of  Massachusetts,  no  estate  of  freehold  in  land  can 
be  conveyed  unless  by  a  deed  or  conveyance  under  the  hand  and  seal 
of  the  party — and  to  perfect  the  title  as  against  strangers,  it  is  further 
requisite  that  the  deed  should  be  acknowledged  before  a  proper  magis- 

9  See,  also,  Wilson  v.  Lewiston  Mill  Ck).,  150  N.  Y.  314,  44  N.  E.  959,  55 
Am.  St.  Rep.  G80  (1896). 

In  Worcester  Bank  v.  Wells,  8  Mete.  (Mass.)  107,  112  (1844),  the  court, 
per  Wilde,  J.,  said:  "It  was  argued,  for  the  plaintiffs,  that  the  defend- 
ants' letter,  promising  to  accept  the  bill,  was  not  a  completion  of  the  con- 
tract, until  it  was  received  by  the  drawers,  Farnum  &  Wright  (in  Massachu- 
setts). But  we  do  not  so  consider  it.  When  the  defendants  agreed  to  their 
request,  and  put  their  letter  in  the  mail,  the  contract,  we  think,  was  com- 
plete. If  the  defendants  made  any  binding  promise,  it  was  made  in  New 
York,  and  to  be  performed  there.  A  presentment  of  the  bill  here  would  not 
have  been  a  good  presentment.  If  the  validity  of  the  contract  is  to  be  de- 
termined by  the  law  of  New  York,  it  is  clear  that  the  defendants  are  not 
liable  as  acceptors.  By  the  statute  referred  to,  a  promise  to  accept  in  a 
letter,  or  on  any  other  paper  than  the  bill  itself,  is  not  an  acceptance,  where 
the  party  h,as  not  taken  the  bill  on  the  faith  of  such  promise.  And  it  is 
agreed  that  this  bill  was  discounted  by  the  plaintiffs  without  any  knowledge 
of  the  letter  of  acceptance." 

As  to  mode  of  acceptance  of  a  bill  of  exchange,  see,  in  general,  61  L*. 
R.  A.  196-199. 


270  GENERAL  PROVISIONS.  (Part  1 

trate,  and  recorded  in  the  registry  of  deeds  for  the  county  where  the 
land  lies. 

The  question  presented  for  consideration,  is  whether  the  lex  loci 
contractus  or  the  lex  loci  rei  sitae  is  to  govern  in  the  disposal  of  real 
estates. 

The  court  entertain  no  doubt  on  the  subject;  and  are  clearly  of 
opinion  that  the  title  to  land  can  be  acquired  and  lost  only  in  the 
manner  prescribed  by  the  law  of  the  place  where  such  land  is  situate. 
The  judgment  of  the  Circuit  Court  must,  therefore,  be  affirmed. ^° 

10  So  as  to  power  of  attorney  to  convey  land.  Morris  v.  Linton.  61  Neb. 
537,  85  N.  W.  565  (1901) ;    Linton  v.  Moorhead,  209  Pa.  640,  59  Atl.  264  (1904). 

In  a  number  of  jurisdictions  it  is  now  provided  by  statute  that  the  rule 
"locus  regit  actum"  may  be  followed.    Stimson,  Am.  St.  Law,  §  1568. 

Continental  Law. — France. — The  rule  that  the  formal  requirements  of 
a  legal  transaction  must  conform  to  the  law  of  the  state  where  the  transac- 
tion takes  place  (locus  regit  actum)  appears  to  have  an  imperative  force. 
Cass.  June  14,  1899  (S.  1900,  1,  225),  and  note  by  A.  Fillet;  Cass.  Feb.  23, 
1864  (S.  1864,  1,  385) ;  Cass.  Aug.  18,  1856  _(D.  1857,  1,  39).  There  seems  to 
be  a  tendency,  however,  in  favor  of  the  optional  character  of  this  rule.  See 
App.  Douai,  Jan.  13,  1887  (S.  1890,  2,  148) ;  Trib.  Civ.  Rouen,  July  22,  1896 ; 
App.  Rouen,  May  7,  1898  (26  Clunet,  578).  It  is  said  to  be  applicable  also 
to  conveyances  of  and  contracts  relating  to  real  estate.  Weiss,  Traite  de 
droit  int.  prive,  iv,  195-196.  Matters  concerning  publicity  (registration,  etc.) 
must  conform,  however,  to  the  law  of  the  situs.  Cass.  Feb.  20,  1894  (22 
Clunet,  615). 

Certain  requirements  (called  "formalites  habilitantes")  are  deemed  to  re- 
late to  capacity  and  not  to  form ;  e.  g.,  the  necessity  of  a  pi'eliminary  .ju- 
dicial authorization  to  the  validity  of  a  gift.  App.  Alger,  May  2,  1898  (26 
Clunet,  385). 

Germany. — A  compliance  with  either  the  lex  loci  or  the  law  applicable 
to  the  substance  of  the  transaction  suffices.  Transactions  involving  the  cre- 
ation or  the  transfer  of  real  rights  form  an  exception  to  this  rule.  Article 
11,  Law  Intr.  Civ.  Code. 

In  63  R.  G.  18  (March  3,  a906),  it  seems  to  be  held  that  the  law  of  the 
situs  will  control  the  formal  requirements  of  "obligatory"  as  well  as  "real" 
contracts  with  respect  to  immovables.  See,  however,  note  to  case  in  16  Nie- 
meyer,  331. 

See,  also,  Rundstein,  Die  Regel  "locus  regit  actum"  im  BUrgerlichen  Ge- 
setzbuche,  20  Archiv  fiir  Biirgerliches  Recht,  192-203. 

Italy. — According  to  article  9,  Prel.  Disp.  Civ.  Code,  it  is  sufficient  that 
a  legal  transaction  in  formal  respects  complies  with  the  law  of  the  place 
where  it  is  made,  or  with  the  common  national  law  of  the  parties.  This 
rule  seems  to  apply  also  to  conveyances  of  and  contracts  relating  to  real  es- 
tate. See  App.  Genoa,  Dec.  22,  1894  (Temi  Genovese  1895,  p.  82).  It  is  held  by 
some  courts,  however,  that  in  view  of  article  1314,  Civ.  Code,  a  power  of  attor- 
ney relating  to  Italian  real  estate  must  conform  to  Italian  law  and  be  in  writ- 
ing. Cass.  Turin,  Aug.  24,  1892  (La  Legge  1892.  2,  588);  App.  Palermo, 
Oct.  6,  1894  (23  Clunet,  910).  Contra:  Cass.  Rome,  March  21,  1SS7  (La  Legge 
1887,  2,  509).  See,  also,  E.  Naquet,  La  regie  "locus  regit  actum"  est-elle  im- 
perative ou  facultative?  31  Clunet,  39-58;  A,  Laine,  Esquisse  d'une  theorie 
de  la  forme  des  actes  instrumentaires  en  droit  international  prive,  35  Clunet, 
321-343,  674-093. 


PART  11. 

PARTICULAR  SUBJECTS. 


CHAPTER  I. 

PROPERTY. 


SECTION  1.— IMMOVABLES.* 


FRIERSON  V.  WILLIAMS. 

(Supreme  Court  of  Mississippi,  1879.     57  Miss.  451.) 

George;,  C.  J.    The  plaintiff  in  error  filed  his  bill  in  the  chancery  court  ^^'"'^^^^'tL^— 
of  Coahoma  county  against  John  Williams  and  his  wife  for  the  pur-  )-<..^  .aMIM^ 
pose  of  collecting  out  of  the  separate  estate  of  Mrs.  Williams  a  note  for    n/V^^tiiy^^  -^^ 
six  thousand  and  fifty  dollars,  made  by  Williams  and  wife,  in  Feb-    6 
ruary,  1873,  payable  to  the  order  of  Williams,  the  husband,  and  by  him  jk^,  ^^  fiiX^J- 


muorsea  lo  me  piamiin  m  error  lor  money  men  aavancea  oy  me  laiier  .  »            Il/'^>i^ 

to  said  Williams.    The  note  was  made  at  New  Orleans,  in  the  state  of  ^^^*ii  '          ' 

Louisiana,  where  Williams  and  his  wife  reside.     The  property  sought  y-c^  f*A'*f*^ 

to  be  charged  with  the  debt  is  land  situated  in  Coahoma  county,  and  jt 

is  the  separate  estate  of  Mrs.  Williams,  under  a  devise  made  to  her  by  Xo-t'trx-,    'v*^ 

her  sister,  Mrs.  McGuire,  who  died  in  1863.    By  her  will  she  provid-  f,>vwCc^«*^  ^Uuia^ 
ed  as  follows :    "My  whole  estate,  real  and  personal,  shall  go  to  my  sis- 


1  From  an  international  standpoint  tangible  property  is  divided  into  mov- 
ables and  immovables,  the  latter  including  leasehold  estates.     Freke  v.  Lord 
Carbery  [1873]  L.  R.  16  Eq.  461 ;  In  re  Gentili,  1875,  Ir.  L.  R.  9  Eq.  541 ;  Dun- 
can V.  Lawsou  [1889]  41  Ch.  D.  394 ;    In  re  Moses  [1908]  2  Ch.  235 ;    Sneed  v.  .y^MtJ^    lAA-jJLSt 
Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  Am.  Dec.  41  (1831).     But  see  Despard  v    ^^'"^^    mt-^-^-^  I 
Churchill,  53  N.  Y.  192  (1873).    See,  also,  Dicey,  Conflict  of  Laws,  74-77 ;  West-     v^    ^ 
lake,  Priv.  Int.  Law,  206.  Xip  C>7*- 

A  state  may  impress  upon  movable  things  within  its  jurisdiction  the  char-  ^  ^m 

acter  of  immovables.     McCollum  v.  Smith,  Meigs  (Tenn.)  342,  33  Am.  Dec.  147  /Vh^-^    ^"^ 
(1838).     But  such  property  will  resume  its  natural  attributes  upon  its  remov-     ^  .  _^„ 

al  from  such  jurisdiction.     Minor  v.  Cardwell,  37  Mo.  350,  90  Am.  Dec.  390    JcM,  OtX  /icC^ 
(1866).    A  state  creating  intangible  property  may  assign  to  it  for  certain  pur- 
poses  a  fictitious  situs  within  the  state.    Tappan  v.  Merchants'  Nat.  Bank,  19     ,*/  o^il^ejufjutAJi 
Wall.  (U.  S.)  490.  22  L.  Ed.  189  (1873) ;    Corry  v.  Baltimore,  196  U.  S.  466      1>  ^^jr^f) 
25  Sup.  Ct.  297,  49  L.  Ed.  556  (1905).  '  -  -    ^ 


(271) 


o<^^^iiHM^^ 


272  PARTICULAR  SUBJECTS.  (Part  2 

ters,  Ellen  Mayes,  wife  of  R.  B,  Mayes,  and  Louisa  Williams,  the  wife 
of  John  Williams,  for  and  during  their  natural  lives ;  and  this  bequest 
is  to  their  sole  and  separate  use,  in  which  their  husbands  respectively 
shall  have  no  right  or  interest."  The  will  then  proceeds  to  dispose  of 
the  remainder,  after  the  termination  of  the  life  estate,  to  the  children 
of  the  two  devisees. 

[The  learned  Chief  Justice  discussed  here  the  nature  of  the  estate 
acquired  by  Mrs.  Williams  under  the  devise  and  continued  as  follows:] 
It  is  next  insisted  that  by  theJawLofJLouisiana  the  promissory  note 
of  the  wife,  made-as  surety  iar  her  husband,  is  void  for  want  of  the 
capacity  of  the  wife  to  enter  into  such  a  contrart^_anjjthat^being  jvoid 
by  the  lex  loci_contractuSjJt  is  void  everywhere.  This  position  is  true, 
if  the  giving  of  the  note  has  no  other  effect  than  what  it  purports  to 
have  on  its  face,  viz.,  a  personal  obligation  of  the  wife.  But  il_is 
charged  irMjif  bill  nnd  ndmjttpH  by  fhpr^pmnrrpr,  that  at  the_time  thij 
note  was  made  in  Louisiana  the  wife  had  a  <;pparatp_pgtatg^  m  realty  sLi"- 
uated  in  this~state,  and^Fhat  she^  contracted  with  reference  to  this  sep- 
arate  estate,  and  intended  to  chargejtjSy  the_promis.sQry  note  in_coji- 
trovexgy.  Whether  this~~pufpose  can  be  carried  out  with  reference  to 
realty  here,  notwithstanding  the  fact  that  the  note  is  void  by  the  law 
of  Louisiana,  is  the  question  presented  for  our  consideration.  _The 
note,  |fjnade  h£re.  would  be  equally  voidJiy-Qur  laws  to  bind^tlie  wife 
pej::sQiiaIlxi_xet,_ilQtwitlislaJid4agL^^ 
the  intent  arid_purpose^_alleged_in_jyie_bilI,_^^^^^ 
her  separate-estate  situated  he^re. 

It  isgenerally  true  that  the  capacity  of  a  married  woman  to  make  a 
contract  will  be  determined  by  the  law  of  her  domicile;  but  this  is  not 
the  rule  when  her  contract  relates  to  her  estate  in  realty,  situated  in 
another  jurisdiction.  Judge  Story  says:  "The  general  principle  of 
the  common  law  is  that  the  laws  of  the  place  where  such  [immovable] 
property  is  situated  exclusively  govern  in  respect  to  the  rights  of  the 
parties,  the  modes  of  transfer,  and  the  solemnities  which  should  ac- 
company them.  The  title,  therefore,  to  real  property  can  be  acquired, 
passed,  and  lost  only  according  to  the  lex  rei  sitae."  Story,  Confl. 
Laws,  §  424.  And  quoting  from  Sir  William  Grant :  "The  validity  of 
every  disposition  of  real  estate  must  depend  upon  the  law  of  the  coun- 
try in  which  that  estate  is  situated ;"  he  says :  "The  same  rule  would 
also  seem  equally  to  apply  to  express  liens  and  to  implied  liens  upon  im- 
movable estate."  Mr.  Burge,  as  quoted  by  Judge  Story,  in  a  note  to  sec- 
tion 445  of  the  same  work,  says :  "The  power  to  alienate  immovable 
jj  property  by  contract  was  a  quality  impressed  on  the  property ;  that  the 

'<  law  from  which  it  was  derived,  or  by  which  it  is  regulated,  was  a  real 

law ;  and  that  the  existence  of  this  power  and  the  validity  of  its  exer- 
cise must  be  decided  by  the  law  of  the  country  in  which  the  property 
was  situated."  And  it  is  said  by  a  learned  author:  "No  sovereignty 
can  permit  the  intrusion  on  its  soil  of  a  foreign  law.  Such  a  law  may 
be  accepted  by  comity  in  cases  in  which  a  contested  issue,  the  law  ap- 


Ch.  1) 


PROPERTY. 


273 


plicable  to  which  is  foreign,  comes  up  for  determination  in  a  home 
court.  But  the  imposidon  ofany  other  la^w^han  the  lejcj;ei_sitae  as  to 
property,  would  be  to_give  foreig^n  subjects  andLforeign  la_ws-ap_ab- 
sokite_£Q5gaCjinchecked  by  any  discretion  of  theJioni£_j:::QurtSj^^er 
a  subj ect-matt£ii--e:£se»tSt4iat-uiier^^ 
vitaHty  of  the_state. 


leiTce,  but  the 
The  mischief  is  cured  by  the^aclopHon 
of  the" rule  Tex  rei  sitas  regit ;  whoever  may  be  the  owner,  or  wherever 
the  contract  was  made,  the  law  of  the  land  reigns.  No  other  law, 
either  as  to  the  transfer  or  control  of  the  property,  is  to  intrude." 
Wharton,  Confl.  Laws,  §§  278,  280.  These  rules  apply  to  marital  rights 
in  realty.  Judge  Story,  after  speaking  of  the  rights  of  husband  and 
wife  as  to  personal  property  situated  beyond  the  matrimonial  domicile 
says :  "But  real  or  immovable  property  ought  to  be  left  to  be  adjudged 
by  the  lex  rei  sitas  as  not  within  the  reach  of  any  extra-territorial  law ;" 
and  in  Vertner  v,  Humphreys,  14  Smedes  &  M.  130,  143,  this  court 
said  that:  "As  to  immovable  property,  the  law  of  the  place  where  it 
is  situated  fixes  the  rights  of  husband  and  wife  in  it." 

The  application  of  these  principles  will  furnish  a  safe  solution  of 
the  question  under  consideration.  The_capacity  of  Mrs.  Williams  to 
take  this  property,  and  her  rights  and^  powers  over  it,  are  derived  from, 
and  regTrfatgdn5v~^EHe^aw  of_this  state.  Her  _powerjc^disposrtion_an^^ 
dealing  with  it  arej_^by_our  laws,  impressed  on  the_4irDpexty  it&elf. 
As  to  noTre~ot^ese  things 
fluence 


laf^tEeTaw  of  Louisiana^Jthe  ^h'ghte&t-4Ji'i- 
If  sheTiad  made  a  contract  expressly  disposing  of  this  prop- 
erty,^ will  not  be  denied  that,  though  void  by  the  laws  of  LyOuisiana, 
either  for  her  want  of  capacity  to  act,  or  the  want  of  the  observances 
of  the  forms  and  solemnities  prescribed  by  those  laws,  yet  if  valid  b}'' 
the  law  of  this  state,  it  would  have  been  good.  The  c.ontract_here  is 
not  strictly  of  that^character,  yet  the  making  of  it  is  the  exercise"  ojjlie" 
power  ortHe"wife  to_dispose  of  her  estate ;  tor  wEeneverjhat  powerjs 
denied,_the  power  to^harge  it  with  her  debts  is  denied  also,  and  the 
charge  can  only  bejmade  effectual  by  the  actual  or  threatened  alienation  _ 
of  the,  estate. -Under,  rL_decree  ofjhe  chancery  court.  The  charging  of 
her  separate  estate_forj[:he  payment  of  money  does  not  pass  any  actual 
interest  in  the  land,  but,  it  is  the  first  and  essential  step  tor  a  jucUclaT 
disposition  of  the  estate  to  satisfy  the  rharge^  and  the  exercise  of  a 
power  of  administration  and  control  over  it,  whicJT^  as  we  have  seen, 
is  governedsolely  by  the  lex  rei  sitse^  To  show  that  this  is  its  true 
nature,  we  have  only  to  suppose  that,  by  the  law  of  Louisiana,  the  note 
was  a  charge  on  her  realty  situated  there,  and  was  not  by  our  law  a 
charge  on  the  realty  situated  here.  In  such  a  case,  it  would  be  evident 
that  an  attempt  to  enforce  it  here  against  her  real  estate  could  not  suc- 
ceed. If  success  could  attend  such  an  effort,  then  the  several  rights 
and  powers  of  husband  and  wife,  as  to  realty,  would  not  be  fixed  and 
governed  by  the  laws  of  the  situs ;  and  the  act  of  a  wife,  done  in  a  for- 
eign state,  would  have  the  effect  of  disposing  of  her  realty  here,  con- 
trary to  our  laws. 

LOE.CONF.L. — 18 


274 


PARTICULAR  SUBJECTS. 


(Part  2 


Bat  there  isjioj-eal  confikl,between  the Jams._ofJl<ouisiana_ari£LMis- 
sissippi  in  reference  to  the  contract.  By  JaQth^iaws- the  ^Qt£  is  VQJd 
for  what  it  purports  to  be  on  its_lace-r:a.,p£rsanal  oMigation  of  the 
wife;  and  it  is  void^XQ£-Ae_same  reasQauii,b£Lth^yiz^the4>ersonal  in- 
capacityofjhewife.  The  difference  between  the  two  laws  is  as  to  the 
effect  on  the  real  property  of  the  wife  in  the  respective  jurisdictions 
of  the  two  states,  and  as  to  which,  as  we  have  above  seen,  the  law  of 
the  state  in  which  the  realty  is  situated  is  the  exclusive  test.  If  the 
note  had  not  been  void  by  our  laws,  as  the  personal  obligation  of  the 
wife,  we  should  nevertheless,  out  of  comity  to  a  sister  state,  adjudge 
it  void  to  that  extent,  if  attempted  to  be  enforced  here;  but  the  prin- 
ciple of  comit}'  does  not  require  a  state  to  regard  the  laws  of  any  other 
state,  so  far  as  they  may  affect  contracts  in  relation  to  real  estate  sit- 
uated in  the  former  state. 

Decree  reversed,  demurrer  overruled,  and  cause  remanded.' 


FESSENDEN  v.  TAFT. 

(Supreme  Court  of  New  Hampshire^  1889.     65  N.  H.  39,  17  Atl.  713.) 

Bill  in  equity  to  forpfjnse^  moj'to-age  ofJandJnNew  Hampsli.ire. 
given  to  secure  a  promissory  note  for  $4,0007lTaa3enn  Massachusetts 
by  George  Taft,  and  payable  to  the  plaintiff ;  both  Taft  and  the  plaintiff 
being  at  the  time  residents  of  Massachusetts.  The  consideration  of 
the  note  was  in  part  a  prior  indebtedness  of  $2,200  from  said  Taft  to 
the  plaintiff',  and  it  was  agreed  that  the  balance  of  $1,800  should  be 
retained  by  the  plaintiff'  until  the  release  of  an  attachment  upon  the 
premises  made  in  a  suit  brought  by  one  Roberts  against  said  Taft. 
Afterwards,  said  Roberts  having  prevailed  in  the  suit,  the  plaintiff  paid 
him  the  $1,800,  and  the  attachment  was  dissolved.  In  pursuance  of  a 
verbal  agreement  between  said  Taft  and  the  plaintiff',  interest  was  reck- 
oned and  paid  on  the  note  at  various  rates  higher  than  6  per  cent,  dur- 
ing various  periods  ending  April  28,  1883,  when  the  last  payment  was 
made.  Pub.  St.  Mass.  1882,  c.  77,  §  3,  provides  as  follows :  "When  there 
is  no  agreement  for  a'Sifferent  rate^the  interest  of  monev^shallbeat  the 
rate  of  six  dollars  upon^iach_linndrpd  Hnllar';  fnr  gi^year,  but  it  shall 
be  lawful  to  pay,  reserve,  or_contract  foiL-atty-^^at&-QL interest  or  of  dis- 
count ;  but  no  greater  ratTthan  that  beforejTientioned  shall  be  recover- 

2  The  validity  of  every  disposition  of  real  estate  depends  upon  the  law  of 
the  state  in  which  the  pi-opertv  is  situated;  e.  g.,  the  validity  of  a  mortgage. 
Goddard  v.  Sawyer.  9  Allen  (Mass.)  78  (1864).  Or  the  validity  of  a  trust.  Sea- 
man V.  Cook,  14  111.  501  (1853) ;  Acker  v.  Priest,.  92  Iowa,  610,  61  N.  W.  235 
(1894).  So  as  to  what  constitutes  delivery  of  a  deed.  Freelaud  v.  Charnley, 
80  Ind.  132  (1881).  It  determines,  also,  the  nature  of  the  interest  created. 
Gault  V.  Van  Zile.  37  Mich.  22  (1877) ;  In  re  Kellogg  (D.  C.)  113  Fed.  120 
(1902),  affirmed  121  Fed.  333,  57  C.  C.  A.  547  (1903).  And  the  effect  of  the  in- 
strument. McCioDu  V.  Scales,  9  Wall.  (U.  S.)  23.  19  L.  Ed.  545  (1869) ;  Rob- 
ards  V.  Marley.  SO  Ind.  185  (1881) ;  Bronson  v.  St.  Croix  Lumber  Co.,  44  Minn. 
348,  46  N.  W.  570  (1890). 


Ch.    1)  PROPERTY, 


9.7  r^ 


ed  in  any  action,  unless  the  agreement  to  pay  such  greater  rate  is_jp 
writing."  ^     " 

Clark_,  J.  TVip  nnfp^hfin<y  a  Mas.sachusetts_contract,  is  governed 
by  the  Ijw  of  Mnssndrnq^^t^  The  mortgage,_altIiQugJ2_  executed  in 
Massachusetts  by  citizens_of  tha^state,  being  a  conveyance  of  land  in 
New  Hampshire,  is  controlled  by_the  law  of  New  Hampshire.  The 
consideration  of  the  note  being  an  indebtedness  of  the  maker  to  the 
payee  of  $2,200,  and  a  promise  of  the  payee  to  pay  to  the  maker  $1,800 
when  the  mortgaged  premises  were  released  from  attachment,  was 
sufficient,  and  the  mortgage  is  valid  by  the  law  of  New  Hampshire.' 
The  amount  of  the  advance  ($1,800),  the  contingency  upon  whiclL_it 
was  to  be  made,  and  the  obligation  of  thejnoiJga gee -f Q_niakejt^_were 
definitely  agreedniporTat  the  execution  and_delivery  of  the  note  and 
mortgageT^ndThe  agreement  was  afterwards  performed,  and  the  mort-! 
gage  is  not  within  the  New  Hampshire  statute  prohibiting  mortgages 
to  secure  future  advances.  Stearns  v.  Bennett,  48  N.  H.  400 ;  Abbott 
V.  ThonTpHOfrr^^OTTS.  256.*  The  law  of  Massachusetts  allowed  the 
parties  to  contract  for  any  rate  of  interest,  (St.  Mass.  1867,  c.  56,  § 
2,)  and  the  payments  of  interest  at  the  rate  agreed  upon  were  legal  and 
binding.  Marvin  v.  Mandell,  125  Mass.  562.  It  is  immaterial  that 
the  agreement  was  not  in  writing.  The  statute  does  not  declare  such 
an  agreement  illegal;  it  merely  declares  "that  no  greater  rate  of  in- 
terest than  six  per  centum  per  annum  shall  be  recovered  in  any  action, 
except  when  the  agreement  to  pay  such  greater  rate  of  interest  is  in 
writing."  The  question  is_not  whether,  under  the^  law  of  Massachu- 
setts, an  oral  executory  agreement  to  pay  interest  at  a  highf^r  fafplJaaji 
6  per  cent.^^arr"5e^nforced  by  action,  but  whether  such  an  agreement 
is  valid  when  full^_executect^  ]\Ioney  paid  as  usurious  interest  is  al- 
lowed^o  be  fecovered  back  on  the  theory  that  the  law  regards  the  pay- 
ment as  made  under  duress,  (Albany  v.  Abbott,  61  N.  H.  158,)  but 
the  general  rule  is  that  payments  voluntarily  made,  with  a  full  knowl- 
edge of  all  material  facts,  cannot  be  recovered  back,  even  though  made 
upon  an  illegal  consideration,  which  the  law  would  not  enforce.  Cald- 
well v.  Wentworth,  14  N.  H.  431.  *  *  *  The  plaintiff  is  entitled 
to  a  decree  of  foreclosure  of  the  mortgaged  premises,  excepting  there- 
from the  barn  on  the  Jordan  lot,  for  the  amount  due  on  the  mortgage 
note,  being  the  sum  of  $3,300,  with  interest  at  6  per  tent,  from  April 
28,  1883.     Decree  accordingly.^ 

3A  part  of  the  reporter's  statement  of  facts  and  of  the  opinion,  not  relat- 
ing to  the  Conflict  of  Laws,  has  been  omitted. 

*  The  statute  provided  as  follows:  "No  estate  conveyed  in  mortgage  shall 
be  holden  by  the  mortgagee  for  the  payment  of  any  sum  of  money,  or  the  per- 
formance of  any  other  thing,  the  obligation  or  liability  to  the  payment  or  per- 
formance of  which  arises,  is  made  or  contracted  after  the  execution  and  de- 
livery of  such  mortgage."    Rev.  St.  N.  H.  1842,  c.  131,  §  3. 

5  Nor  will  the  situs  as  such  govern  the  question  of  damages  for  the  breach 
of  a  contract  made  in  one  state  for  the  purchase  of  land  located  in  another 
state.  Atwood  v.  Walker,  179  INIass.  514,  61  N.  E.  58  (1901),  ante,  p.  78; 
Finnes  v.  Selover,  Bates  &  Co.,  102  Minn.  334,  113  N.  W.  883  (1907). 


Ofn^^ 


276  PARTICULAR  SUBJECTS.  (Part  2 

^^^,fi^  POLSON  V.  STEWART. 

{Supreme  Judicial  Court  of  Massachusetts,  1897.    167  Jlass.  211,  45  N.  E.  737, 
36  L.  R.  A.  771,  57  Am.  St.  Rep.  452.) 

HoivMES,  J.^  This  is  a  bill  to  enforce  a  covenant  made  by  ,the  de- 
fendant to  his  wife,  the  plaintiff's  intestate,  in  North  Carolina,  to  sur- 
render all  his  marital  rights  in  certain  land  of  hers.  The  land  is  in 
Massachusetts.  The  parties  to  the  covenant  were  domiciled  in  North 
_  ^  Carolina.    According  to  the  bill,  the  wife  took  stepswhich,  under  the 

p-  Xl  lC*^iV**^  '  North  Carohna  statutes,  gave  her  the  nght^  to_contLai:t_as_cLieme_aQle 
»  with  her  lrus^ban3lasI^Elt3s3^h.-i)thers,  and  afterwards  releasedLJier 

dower  in  the  defendant's  lands..  In  considefation^oTthis  releasej_and 
to  induce  his  wife  to  forbear  suing^for  divorce,  for  which  she  hadjust 
cause,  and  ~foF  other  adequate  considerations,  tfie7Hejendlnt_£.secuted 
*  the  covenant    The'~defendant  dernurs^ 

The  argument  in  support  of  the  demurrer  goes  a  little  further  than 
is  open  on  the  allegations  of  the  bill.  It  suggests  that  the  instrument 
which  made  the  wife  a  "free  trader,"  in  the  language  of  the  statute, 
did  not  go  into  effect  until  after  the  execution  of  the  release  of  dower 
and  of  the  defendant's  covenant.  But  the  allegation  is  that  the  last- 
mentioned  two  deeds  were  executed  after  the  wife  became  a  free  trad- 
er, as  they  probably  were  in  fact,  notwithstanding  their  bearing  date 
earlier  than  the  registration  of  the  free  trader  instrument.  We  must 
assume  that  at  the  date  of  their  dealings  together  the  defendant  and 
his  wife  had  as  large  a  freedom  to  contract  together  as  the  laws  of 
their  domicile  could  give  them. 

Butjt  is  said  that  the  laws  of  the  parties'  domicile  could  not  au- 
thorize a  contractJietffi££n  them  as  to  lands  m  Massachusetts.     Ob- 


vi^^ly,  this  is  not  true.    It  is  true  that  the  laws  of  other  states  cannot 
render 'valU'conveyances  of  property  within  our  borders  which  our 
laws  say  are  void,  for  the  plain  reason  that  we  have  exclusive  power 
over  the  res.     Ross  v.  Ross,  129  Mass.  243,  246,  37  Am.  Rep.  321; 
Hallgarten  v.  Oldham,  135  Mass.  1,  7,  8,  46  Am.  Rep.  433.     But  the 
/same  reason  inverted  establishes  that  the,  lex  rei  sitge  cannot  control 
/  persojial  covenants  not  purporting  to  be  convevances.  between  persons 
I    outside  tli£4iinsdiction,  altliQuglL_£oncerning  a  thing  withir\  jt.    What- 
V  ever  the  covenant,  the  laws  of  North  Carolina  could  subject  the  de- 
fendant's property   to   seizure   on   execution,   and   his   person   to  im- 
prisonment, for  a  failure  to  perform  it.     Xlj^r^for^^n  principle,  the 
law  of  North  Carolina  determines  the  v^h'dityof  the  contract:     Such 
precedents  as  there  are,  are  on  the  same  side.    The  most  important  in- 
timations to  the  contrary  which  we  have  seen  are  a  brief  note  in  Story, 
Confl.  Laws,  §  436,  and  the  doubts  expressed  in  Mr.  Dicey's  very  able 
and  valuable  book.     Lord  Cottenham  stated  and  enforced  the  rule  in 
the  clearest  way  in  Ex  parte  Pollard,  4  Deac.  27,  40,  et  seq. ;  Id.,  Mont. 


^ 


6  The  statement  of  facts  and  a  part  of  the  opuiion  not  relating  to  the  Con- 
flict of  Laws  have  been  omitted. 


Ch.    1)  PROPERTY.  277 

&  C.  239,  250.  So  Lord  Romilly,  in  Cood  v.  Good,  33  Beav.  314,  322. 
So  in  Scotland,  in  a  case  like  the  present,  where  the  contract  enforced 
was  the  wife's.  Findlater  v.  Seafield  (Feb.  8,  1814)  17  Fac.  Col.  553. 
See,  also,  Cuninghame  v.  Semple,  6  Mor.  Diet.  4462 ;  Ersk.  Inst.  bk.  3, 
tit.  2,  §  40;  Westl.  Priv.  Int.  Law  (3d  Ed.)  §  172;  Ror.  Int.  St.  Law 
(2d  Ed.)  289. 

If  vaHd  by  llie.  law  of  North  Carolina,  there  is  no  reason  why  tlie  P-ti 
contract  should  not  be  enforced  here.  The  general  principle  is  taniil-  " 
iar!  Withoutconsidering  the  argument  addressed  to  us  that  such  a 
contract  would  have  been  good  in  equity  if  made  here  (Holmes  v.  Win- 
chester, 133  Mass.  140 ;  Jones  v.  Clifton,  101  U.  S.  225,  25  L.  Ed.  908 ; 
Bean  v.  Patterson,  122  U.  S.  496,  499,  7  Sup.  Ct.  1298,  30  L.  Ed.. 
1126),  w^e  see  no  ground  of  policy  for  an  exception.  The  statutory 
limits  which  have  been  found  to  the  power  of  a  wife  to  release  dower 
(Mason  v.  Mason,  140  Mass.  63,  3  N.  E.  19;  Peaslee  v.  Peaslee,  147 
Mass.  171,  181,  17  N.  E.  506),  do  not  prevent  a  husband  from  making 
a  valid  covenant  that  he  will  not  claim  marital  rights  with  any  person 
competent  to  receive  a  covenant  from  him  (Charles  v.  Charles,  8  Grat. 
[Va.]  486,  56  Am.  Dec.  155;  Logan  v.  Birkett,  1  Mylne  &  K.  220; 
Marshall  v.  Beall,  6  How.  [U.  S.]  70,  12  L.  Ed.  347).  The  com- 
petency  of  the  wife  to  receive  the^ovenant  is  established  by  the  law  of 
her  doQiicile,  an3^  oi~tIie  place  of  the  contract.  The  laws  of  Massa- 
chusetts do  not  nialcejt_impossible  for  him  specifically  to  performjij^ 
undertaking.  He  can  give  a  release  which  will  be  goo3T)y  Massachu- 
setts~Taw7lf  it  be  said  that  the  rights  of  the  administrator  are  only 
derivative  from  the  wife,  we  agree,  and  we  do  not  for  a  moment  regard 
any  one  as  privy  to  the  contract  except  as  representing  the  wife.  But, 
if  then  it  be  asked  whether  she  could  have  enforced  the  contract  dur- 
ing her  life,  an  answer  in  the  affirmative  is  made  easy  by  considering 
exactly  what  the  defendant  undertook  to  do.  So  far  as  occurs  to  us, 
he  undertook  three  things:  First,  not  to  disturb  his  wife's  enjoyment 
while  she  kept  her  property;  second,  to  execute  whatever  instrument 
was  necessary  in  order  to  release  his  right  if  she  conveyed ;  and  third, 
to  claim  no  rights  on  her  death,  but  to  do  whatever  was  necessary  to 
clear  the  title  from  such  rights  then.  All  these  things  were  as  capable 
of  performance  in  Massachusetts  as  they  would  have  been  in  North 
Carolina.  Indeed,  all  the  purposes  of  the  covenant  could  have  been 
secured  at  once  in  the  lifetime  of  the  wife  by  a  joint  conveyance  of  the 
property  to  a  trustee  upon  trusts  properly  limited. 

It  will  be  seen  that  the  case  does  not  raise  the  question  as  to  what 
the'cornmorria?vv~and_tb£-Eresumed  law  of  North  Carolina  would  be  as 
to  a  North  Carolina  contract  calling  for  acts  in  Massachusetts,  or  con- 
cernmg^roperty  in  Massachusetts,  which  could  not  be  done  consist- 
entlv  with  Massachusetts  law^    *     *     * 

Demurrer  overruled. 

FiELD^  C.  J.  (dissenting).  I  cannot  assent  to  the  opinion  of  a  ma- 
jority of  the  court.  By  our  law,  husband  and  wife  are  under  a  general 
disability  or  incapacity  to  make  contracts  with  each  other.    The  deci- 


278  PARTICULAR  SUBJECTS.  (Part  2 

sion  in  Whitney  v.  Closson,  138  Mass.  49,  shows,  I  think,  that  the  con- 
tract sued  on  would  not  be  enforced  if  the  husband  and  wife  had  been 
domiciled  in  Massachusetts  when  it  was  made.  As  a  conveyance  made 
directly  between  husband  and  wife-of  an  iaterk&L  in  MassacllUbelt? 
land  \voiild  be  voi^^lthough  the  partie^  were^^pjmd]  ed  ■iii_NorthCaro- 
lina  when  it_was_niade^J^^cl_^JEie  laws  of  Mgrtli^Carolina  were  au- 
thorized to  make_siich  a  conveyance,  so  I  think  Jhat  a  ^aa^itractlor^such 
a  conveyance  between- the  same  persons  also,  would  i?_ej^H!  Tt  seems 
to  me  illogical  to  say  that  we  will  not  permit  a  conveyance  of  Massa- 
chusetts land  directly  between  husband  and  wife,  wherever  they  may 
have  their  domicile,  and  yet  say  that  they  may  make  a  contract  to  con- 
vey such  land  from  one  to  the  other,  which  our  courts  will  specifically 
J  enforce.  It  is  possible  to  abandon  the  rule  of  lex  rei  sitae,  but  to  keep 
'  it  for  conveyances  of  land  and  to  abandon  it  for  contracts  to  convey 
^  land  seems  to  me  unwarrantable. 

The  question  of  the  validity  of  a  mortgage  of  land  in  this  common- 
wealth is  to  be  decided  by  the  law  here,  although  the  mortgage  was 
executed  elsewhere,  where  the  parties  resided,  and  would  have  been 
void  if  upon  land  there  situated.  Goddard  v.  Sawyer,  9  Allen,  78. 
"It  is  a  settled  principle  that  'the  title  to  and  the  disposition  of  real  es- 
tate must  be  exclusively  regulated  by  the  law  of  the  place  in  which  it  is 
situated.'  "  Cutter  v.  Davenport,  1  Pick.  81,  11  Am.  Dec.  149 ;  Os- 
born  V.  Adams,  18  Pick.  245.  The  testamentary  execution  of  a  power 
of  appointment  given  by  will  in  relation  to  land  is  governed  by  the  lex 
situs,  or  the  law  of  the  domicile  of  the  donor  of  the  power.  Sewall  v. 
Wilmer,  132  Alass.  131. 

The  plaintiff,  merely  as  administrator,  cannot  maintain  the  bill. 
Caverly  v.  Simpson,  132  Mass.  462,  464.  The  plaintiff  must  proceed  on 
the  ground  that  Mrs.  Henry  Stewart,  Jr.,  acquired  by  the  instruments 
executed  in  North  Carolina  the  right  to  have  conveyed  or  released  to 
her  and  her  heirs  by  her  husband  all  the  interest  he  had  as  her  husband 
in  her  lands  in  Massachusetts ;  that  this  right  descended  on  her  death  to 
her  heirs,  according  to  the  law  of  Massachusetts ;  and  that  the  plaintiff, 
being  an  heir,  has  acquired  the  interest  of  the  other  heirs,  and  therefore 
brings  the  bill  as  owner  of  this  right.  The  plaintiff,  as  heir^  dajms  by  de- 
scent  from  Mrs.  Stewart,  and,  if  the  contract  sued  on-ijt^v-Qid  ?.s  to  ]\(^j. 
it  is  voi^'aJToTTiirirn  TTTs  only  on  the  ground  that  the  contract  conveyed 
an  equitable  title  that  the  plaintiff,  as  heir,  has  any  standing  in  court. 
His  counsel  founds  his  argument  on  the  distinction  between  a  convey- 
ance of  the  legal  title  to  land  and  a  contract  to  convey  it.  If  the  instru- 
ment relied  on  purported  to  convey  the  legal  title,  his  counsel  in  effect 
admits  that  it  would  be  void  by  our  law.  He  accepts  the  doctrine  stat- 
ed in  Ross  V.  Ross,  129  Mass.  243,  246,  37  Am.  Rep.  321,  as  follows : 
"And  the  validity  of  any  transfer  of  real  estate  by  act  of  the  own- 
er, whether  inter  vivos  or  by  will,  is  to  be  determined,  even  as  re- 
gards the  capacity  of  the  grantor  or  testator,  by  the  law  of  the  state  in 
which  the  land  is  situated."    As  a  contract  purporting  to  convey  a  right 


Ch.    1)  PROPERTY.  279 

in  equity  to  obtain  the  legal  title  to  land,  he  contends  that  it  is  valid. 
I  do  not  dispute  the  cases  cited  with  reference  to  contracts  concern- 
ing personal  propert}';  but  the  rule  at  common  law  in  regard  to  the 
capacity  of  parties  to  make  contracts  concerning  real  property,  as  I 
read  the  cases  and  text-books,  is  that  the  lex  situs  governs.  Cochran 
V.  Benton,  126  Ind.  58,  25  N.  E.  870;  Doyle  v.  McGuire,  38  Iowa, 
410;  Sell  v.  Miller,  11  Ohio  St.  331;  Johnston  v.  Gawtry,  11  Mo.  App. 
322;  Frierson  v.  Williams,  57  Aliss.  451.  Dicey  on  the  Conflict  of 
Laws  is  the  latest  text-book  on  the  subject.  He  states  the  rule  as 
follows : 

Page  Ixxxix.:  "(B)  Validity  of  Contract,  (i)  Capacity.  Rule  146. 
Subject  to  the  exceptions  hereinafter  mentioned,  a  person's  capacity  to 
enter  into  a  contract  is  governed  by  the  law  of  his  domicile  (lex  domi- 
ciHi)  at  the  time  of  the  making  of  the  contract:  (1)  If  he  has  such 
capacity  by  that  law,  the  contract  is,  in  so  far  as  its  validity  depends 
upon  his  capacity,  valid.  (2)  If  he  has  not  such  capacity  by  that  law, 
the  contract  is  invalid.  Exception  1 :  A  person's  capacity  to  bind 
himself  by  an  ordinary  mercantile  contract  is  (probably)  governed  by 
the  law  of  the  country  where  the  contract  is  made  (lex  loci  contractus) 
(?).  Exception  2:  A  person's  capacity  to  contract  in  respect  of  an 
immovable  (land)  is  governed  by  the  lex  situs." 

Page  xcii. :  "(A)  Contracts  with  Regard  to  Immovables.  Rule  151. 
The  effect  of  a  contract  with  regard  to  an  immovable  is  governed  by 
the  proper  law  of  the  contract  (  ?).  The  proper  law  of  such  contract 
is,  in  general,  the  law  of  the  country  where  the  immovable  is  situate 
(lex  situs)." 

On  page  517  et  seq,  he  states  the  law  in  the  same  way,  with  numer- 
ous illustrations,  but  with  some  hesitation  as  to  the  law  governing  the 
forms  of  contracts  to  convey  immovables.  See  page  xc,  rule  147,  ex- 
ception 1.  For  American  notes  with  cases,  see  page  527  et  seq.  In 
the  Appendix  (page  769,  note  B)  he  discusses  the  subject  at  length, 
and  with  the  same  result.  Some  of  the  cases  cited  are  the  follow- 
ing: Succession  of  Larendon,  39  La.  Ann.  952,  3  South.  219;  Besse 
V.  Pellochoux,  73  111.  285,  24  Am.  Rep.  242;  Fuss  v.  Fuss,  24  Wis. 
256,  1  Am.  Rep.  180;  Moore  v.  Church,  70  Iowa,  208,  30  N.  W.  855,  55 
Am.  St.  Rep.  439 ;  Heine  v.  Mechanics'  &  Traders'  Ins.  Co.,  45  La. 
Ann.  770,  13  South.  1 ;  First  Nat.  Bank  v.  Hughes,  10  Mo.  App.  7 ; 
Ordronaux  v.  Rey,  2  Sandf.  Ch.  (N.  Y.)  33;  Adams  v.  Clutterbuck, 
10  O.  B.  Div.  403;  Chapman  v.  Robertson,  6  Paige  (N.  Y.)  627,  630, 
31  Am.  Dec.  264. 

Phillimore  states  the  law  as  follows  (4  Phillim.  Int.  Law,  3d  Ed., 
p.  596)  : 

"DCCXXXV.  (1)  The  case  of  a  contract  respecting  the  transfer 
of  immovable  property  illustrates  the  variety  of  the  rules  which  the 
foreign  writers  upon  private  international  law  consider  applicable  to 
a  contract  to  which  a  foreigner  is  a  party:  They  say  that:  (i)  The  ca- 
pacity of  the  obligor  to  enter  into  the  contract  is  determined  by  refer- 


280  PARTICULAR  SUBJECTS.  (Part  3 

ence  to  the  law  of  his  domicile,  (ii)  The  like  capacity  of  the  obligee 
by  the  law  of  his  domicile,  (iii)  The  mode  of  alienation  or  acquisition 
of  the  immovable  property  is  to  be  governed  by  the  law  of  the  situation 
of  that  property,  (iv)  The  external  lorm  of  the  contract  is  to  be  gov- 
erned by  the  law  of  the  place  in  which  the  contract  is  made.  It  is  even 
suggested  by  Fcelix  that  sometimes  the  interpretation  of  the  contract 
may  require  the  application  of  a  fifth  law. 

"DCCXXXVI.  The  law  of  England  and  the  law  of  the  North 
American  United  States  require  the  application  of  the  lex  rei  sitae 
to  all  the  four  predicaments  mentioned  in  the  last  section. 

"DCCXXXVII.  But  a  distinction  is  to  be  taken  between  contracts 
to  transfer  property  and  the  contracts  by  which  it  is  transferred.  The 
former  are  valid  if  executed  according  to  the  lex  loci  contractus ;  the 
latter  require  for  their  validity  a  compliance  with  the  forms  prescribed 
by  the  lex  rei  sitae.  Without  this  compliance,  the  dominium  in  the 
property  will  not  pass." 

To  the  same  effect  as  to  the  capacity  of  the  parties  are  Nels.  Priv. 
Int.  Law,  147,  260;  Ratt.  Priv.  Int.  Law,  128 ;  Whart.  Confl.  Laws  (2d 
Ed.)  §  296;  Story,  Confl.  Laws  (8th  Ed.)  §§  424-431,  435;  Ror.  Int. 
St.  Law,  263.    See  Westl.  Priv.  Int.  Law  (3d  Ed.)  §§  156,  167,  et  seq. 

On  reason  and  authority  I  think  it  cannot  be  held  that,  although  a 
deed  between  a  husband  and  his  wife  domiciled  in  North  Carolina,  of 
the  rights  of  each  in  the  lands  of  the  other  in  Massachusetts,  is  void  as  a 
conveyance  by  reason  of  the  incapacity  of  the  parties  under  the  law 
of  Massachusetts  to  make  and  receive  such  a  conveyance  to  and  from 
each  other,  yet,  if  there  are  covenants  in  the  deed  to  make  a  good  title, 
the  covenants  can  be  specifically  enforced  by  our  courts,  and  a  convey- 
ance compelled,  which,  if  voluntarily  made  between  the  parties,  would 
be  void.  I  doubt  if  all  of  the  instruments  relied  on  have  been  executed 
in  accordance  with  the  statutes  of  North  Carolina.  By  section  1828 
of  the  Statutes  of  that  state,  set  out  in  the  papers,  the  wife  became  a 
free  trader  from  the  time  of  registration.  This,  I  understand,  is  Jan- 
uary 7,  1893.  Exhibit  B  purports  to  have  been  executed  before  that 
time,  to  wit,  January  4,  1893.  There  does  not  appear  to  have  been  any 
examination  of  the  wife  separate  and  apart  from  her  husband,  as  re- 
quired by  section  1835.  If  Exhibit  B  fails,  there  is  at  least  a  partial 
failure  of  consideration  for  Exhibit  C.  It  is  said  that  an  additional 
consideration  is  alleged,  viz.  the  wife's  forbearing  to  bring  a  suit  for 
divorce.  Whether  this  last  is  a  sufficient  consideration  for  a  contract,  I 
do  not  consider.  It  is  plain  enough  that  there  was  an  attempt  on  the 
part  of  the  husband  and  wife  to  continue  to  live  separate  and  apart 
from  each  other  without  divorce,  and  to  release  to  each  other  all  the 
property  rights  each  had  in  the  property  of  the  other.  If  the  release 
of  one  fails,  I  think  that  this  court  should  not  specifically  enforce  the 
release  of  the  other.  Mutuality  in  this  respect  is  of  the  essence  of  the 
transaction.  If  the  husband  owned  lands  in  Massachusetts,  and  had 
died  before  his  wife,  I  do  not  think  that  Exhibit  B,  even  if  it  were 


Ch.    1)  PROPERTY.  281 

executed  according  to  the  statutes  of  North  Carolina,  and  the  wife 
duly  examined,  and  a  certificate  thereof  duly  made,  would  bar  her  of 
her  dower.  Our  statutes  provide  how  dower  may  be  barred.  Pub.  St. 
c.  124,  §§  6-9.  Exhibit  B  is  not  within  the  statute.  See  Mason  v. 
Mason,  140  Mass.  63,  3  N.  E.  19.  Antenuptial  contracts  have  been  en- 
forced here  in  equity  so  as  to  operate  as  a  bar  of  dower,  even  if  they 
did  not  constitute  a  legal  bar.  Jenkins  v.  Holt,  109  Mass.  261.  But 
postnuptial  contracts,  so  far  as  I  am  aware,  never  have  been  enforced 
here  so  as  to  bar  dower,  unless  they  conform  to  the  statutes.  Whit- 
ney V.  Closson,  138  Mass.  49.  Whatever  may  be  true  of  contracts 
between  husband  and  wife  made  in  or  when  they  are  domiciled  in 
other  jurisdictions,  so  far  as  personal  property  or  personal  liability 
is  concerned,  I  think  that  contracts  affecting  the  title  to  real  prop- 
erty situate  within  the  commonwealth  should  be  such  as  are  authoriz- 
ed by  our  laws.    I  am  of  opinion  that  the  bill  should  be  dismissed."' 


SECTION  2.— MOVABLES. 
I.  Tangible. 

CAMMELL  V.  SEWELL.      ^  ^'AjuJbu^    lU    >(^V\>iAr^^  JZi^ 

(In  the  Exchequer  Cbamher,  1S60.     5  Hurl.  &  N.  728.) 

Trover  for  deals,  with  a  count  for  money  had  and  received.     At  the  "» 

trial  a  verdict  was  taken  for  the  plaintiffs,  subject  to  a  special  case.  /-y^-^iML    0iAfi^^~^ 

The  material  facts  were  in  substance  as  follows :    The  plaintiffs  are  ^  - 

underwriters  at  Hull;   the  defendants,  merchants  in  London.     The  ac-  '^y'"^     ^^ey\f*^ 
tion  is  brought  to  recover  a  part  of  a  cargo  of  deals  shipped  on  board 

a  Prussian  ship  at  Onega,  Russia,  by  the  Onega  Wood  Company,  for  ~UaX\     • 

7  As  to  law  governing  covenants  in  a  deed,  see  Fisher  v.  Parry,  68  Ind.  465    HtSjL  ." 
(1879) ;   Bethell  v.  Bethell,  54  Ind.  428,  23  Am.  Rep.  650  (1876) ;   Oliver  v.  Loye, 
59  INIiss.  320  (1881)  ;  Succession  of  Cassidy,  40  La.  "Ann.  827,  5  So.  292  (1888) ; 
Dalton  V.  Taliafero,  101  111.  App.  592  (1902). 

Mechanics'  Liens. — The  existence  of  a  mechanic's  lien  for  building  ma- 
terials is  determined  by  the  law  of  the  situs  of  the  land,  and  not  by  the  law 
of  the  state  in  which  the  contract  under  which  the  materials  are  furnished 
is  made.  Campbell  v.  Coon,  149  N.  Y.  556,  44  N.  E.  300,  38  L.  R.  A.  410  (1896). 
Compare  Midland  Valley  R.  Co.  v.  Moran  Bolt  &  Nut  Mfg.  Co.,  80  Ark.  399, 
97  S.  W.  679  (1906). 

Continental  Law. — It  is  admitted  that,  excepting  questions  of  capacity  and 
form,  the  situs  of  realty  will  necessarily  govern  the  creation  of  real  rights 
therein.  No  rights  can  therefore  be  created  which  are  either  unknown  to  the 
law  of  the  situs  or  are  otherwise  opposed  to  its  public  order.  France,  Cass. 
April  4,  1881  (S.  1883,  1,  65),  and  note  by  L.  Renault. 

The  law  of  the  situs  determines  also  whether  the  property  is  to  be  deemed 
movable  or  immovable.  France,  Cass.  April  5,  1887  (16  Clunet,  827)  ;  Trib. 
■Civ.  Seine,  March  14,  18&4  (21  Clunet,  815). 


r 


Q*; 


282  PARTICULAR  SUBJECTS.  (Part  2 

Messrs.  Simpson  &  Whaplate,  of  Hull,  and  by  them  insured  with  the 
plaintiffs  for  £1,150. 

The  vessel  in  the  course  of  her  voyage  went  ashore  near  a  place 
called  Molde  in  Norway.  The  cargo  was  sold  at  public  auction  at 
Molde  by  the  master  of  the  vessel  against  the  protest  o±  Jervell,  a 
representative  of  Messrs.  Simpson  &  Whaplate,  and  was  bought  by 
Hans  Clausen.  Suit  was  brought  by  Jervell  in  the  Diocesan  Court 
of  Trondjhem  to  set  aside  the  sale,  but  failed. 

A  considerable  portion  of  the  cargo  was  shipped  for  London  under 
a  bill  of  lading,  deliverable  to  the  order  of  Hans  Clausen,  and  by  him 
indorsed  to  the  defendants,  who  had  made  advances  on  the  cargo. 
Defendants  sold  the  cargo  at  public  auction,  the  net  proceeds  received 
by  them  being  £1,470.  4s.  2d.  The  damage  sought  to  be  recovered  in 
the  present  action  is  that  sum,  with  interest. 

Plaintiffs,  who  upon  the  abandonment  of  the  cargo  to  them  by 
Simpson  &  Whaplate  had  paid  them  as  for  total  loss,  thereupon  brought 
this  action  against  the  defendants  for  the  recovery  of  the  above  sum, 
with  interest. 

There  was  evidence_that_byjd2eJaw_of^^  asale  byjthe^  master 

would  transfer  ihe  property  mjthe  cargo. 

The  Court  of  Exchequer,  Martin,  B.,  delivering  the  opinion,  held 
that  the  parties  to  the  suit  were  concluded  by  the  judgment  of  the 
Diocesan  Court  of  Trondjhem.  It  ordered  the  verdict  for  the  plain- 
tiff to  be  set  aside  and  a  verdict  to  be  entered  for  the  defendants.  Writ 
of  error  by  plaintiffs  to  the  Exchequer  Chamber.^ 

Crompton,  J.^  In  this  case  the  majority  of  the  court  are  of  opin- 
ion that  the  judgment  of  the  Court  of  Exchequer  should  be  affirmed. 
At  the  same  time  we  are  by  no  means  prepared  to  agree  with  the 
Court  of  Exchequer  in  thinking  the  judgment  of  the  Diocesan  Court 
in  Norway  conclusive  as  a  judgment  in  rem,  nor  are  we  satisfied  that 
the  defendants  in  the  present  action  were  estopped  by  the  judgment 
of  that  court  or  what  was  relied  on  as  a  judicial  proceeding  at  the 
auction.  It  is  not,  however,  necessary  for  us  to  express  any  decided 
opinion  on  these  questions,  as  we  think  that  the  case_^iDuld  be  deter- 
mined  on  the  real  merits,  as-4o-4b€-paasiag  of  tli£_pro£erty! 

If  we  are  to  recognize  the  N^w^g'^^^  l^'^^,  and^  if  armrding  to  that 
law Jhej3ropertY^^^pa£sed_J3vthe  sale  in  Norwaj^JoJ!]^laujen7as~aji  in- 
nocent  purchaser,  we  do  not  think _tliaL_the,_subsequent_bringing  the 
property  to_England_can^alter  the  position  of  jthe  partjes.  The  difficul- 
ty which  we  have  felt  in  the^case  principally  arises  from  the  mode 
in  which  the  evidence  is  laid  before  us  in  the  mass  of  papers  and  dep- 
ositions 'Contained  in  the  appendix. 

We  do  not  see  evidence  in  the  case  sufficient  to  enable  us  to  treat  the 
transaction  as  fraudulent  on  the  part  of  Clausen,  although  there  are 

«  This  statement  of  facts  has  been  substituted  for  that  of  3  Hurl.  &  N.  G17. 
8  The  dissenting  opinion  of  Bj-les,  J.,  has  been  omitted. 


Ch.  1) 


PROrERTY 


<:U'^^'^2^ 


circumstances  which  would  have  made  LHDctter  for  him  not  to  have 
become  the  purchaser.  Tiisating  himriherefore^ns  ;in  innn^^nt  pir- 
chaser,  it  appears  to,iis-44w4U±L£jciuestion5  are — did  the  property  bv  the 
law  of  ISTorvvav  vesUin_liim~^s  an  innocent  purchaser?  and  are  we 


to  recognize  that  Ja^?  The  question  of  what  is  the  i'oreign  law  is 
one  of  fact,  and  here  again  there  is  great  difficulty  in  finding  out  from 
the  mass  of  documents  what  is  the  exact  state  of  the  law.  The  con- 
clusion which  we  draw  from  the  evidence  is,  that  by,.the_Jaw_ofNor- 
way  the  captain,  under  circumstances  such  as  existed  in  this  case, 
could  not,"-3S~between  himselFan^l!iis"~(3wrTgrs,  or  tfe  owners  of  the 
cargo,  justify  the  sale,  but  that  he  remainecTliable^an'dTesponsible'to' 
them  for  a  salernQfTjiistifieduinder  the  circumstaiices ;  whilst,  on  the 
other  liandTan  innocent  purcliaserl  would  have  a  good  Jitle  to  the 
property  bot^htjby:  him  from  the  agent  of  the  owners. 

It  does  not  appear  to  us  that  there  is  anything  so  barbarous  _or 

mnnc^l-rniic;  in  thnj^t^t^  of  ^'^p  1aw::as  that  we  can  say  that  It  should  IK)t 

be  recognized  by  us.  Our  own  law  as  to  market  overt  is  analogous ; 
and  though  "it Ts^said'  that  much  mischief  would  be  d[one~By~upHold-  ~ 
ing  sales  of  this  nature,  not  justified  by  the  necessities  of  the  case, 
it  may  well  be  that  the  mischief  would  be  greater  if  the  vendee  were 
only  to  have  a  title  in  cases  where  the  master  was  strictly  justified  in 
selling  as  between  himself  and  the  owners.  If  that  Vv' ere  so,  purchasers, 
who  seldom  can  know  the  facts  of  the  case,  would  not  be  inclined 
to  give  the  value,  and  on  proper  and  lawful  sales  by  the  master  the 
property  would  be  in  great  danger  of  being  sacrificed. 

There  appears  nothing  barbarous  in  '^^'vjno^fliat  ihp  qgenf-  nf  thp 
owners,  who ~i:s~the  person  to  seTT, TrHJeTircumstances  justify  the  sale, 
and  who  muSTrln  point  of  fact;  be  the  party^  to  exercise  his  judg- 
ment as  to_\vhether  there  should  be  a  sale  or  nni^^  -s.hnnlrl  hpv?'"-Ttr^ 
power  of  giving  a  good  title  to  the  innocent  purchaser,  and  that  the 
latter  shouId^Tiot  be  bound  to  look  to  the  title  of  the  sellen  Tt  appears 
in  the  presentc^se  that  the  one  purchaser  bought  the  whole  cargo; 
but  suppose  the  farmers  and  persons  in  the  neighbourhood  at  such 
a  sale  buy  several  portions  of  the  goods,  it  w^ould  seem  extremely  in- 
convenient if  they  were  liable  to  actions  at  the  suit  of  the  owners,  on 
the  ground  that  there  was  no  necessity  for  the  sale.  Could  such  a 
purchaser  coming  to  England  be  sued  in  our  courts  for  a  con- 
version, and  can  it  alter  the  case  if  he  resell,  and  the  property  comes 
to  this  country? 

Many  cases  were  mentioned  in  the  course  of  the  argument,  and 
more  might  be  collected,  in  which  it  might  seem  hard  that  the  goods 
o,f  foreigners  should  be  dealt  with  according  to  the  laws  of  our  own 
or  of  other  countries.  Amongst  others  our  law  as  to  the  seizure  of  a 
foreigner's  goods  for  rent  due  from  a  tenant,  or  as  to  the  title  gained 
in  them,  if  stolen,  by  a  sale  in  market  overt,  might  appear  harsh. 
But  we  'cannot  think  that  the  goods  of  foreigners  would  be  protected 
against  such  laws,  or  that  if  the  property  once  passed  by  virtue  of 


M^  - 


284  PARTICULAR  SUBJECTS.  (Part  2 

them  it  would  again  be  changed  by  being  taken  by  the  new  owner  into 
the  foreigner's  own  country.  We  think  that  the  law  on  this  subjecL 
was  correctly  stated  by  the  Lord  Chief  Baron  in  the  course  of  the 
argument  in  the  court  below,  where  he  says  "if  ^ersonal_4imp£rtyis 
disposed  of  in  ajTianngj:--bindingL-ac£Qrding;^to  the  law  of  the  country 
wherejt  is,  that  disposjjJDn  is-MndingLe.verywhere."  And  we  do  not 
thinkthat  it  makes  any  difference  that  the  goods  were  wrecked,  and 
not  intended  to  be  sent  to  the  country  where  they  were  sold.  We  do 
not  think  that  the  goods  which  were  wrecked  here  would  on  that  account 
be  the  less  liable  to  our  laws  as  to  market  overt,  or  as  to  the  land- 
lord's right  of  distress,-  because  the  owner  did  not  foresee  that  they 
would  come  to  England. 

Very  little  authority  on  the  direct  question  before  us  has  been 
brought  to  our  notice.  The  only  case  which  seems  at  variance  with 
the  principles  we  have  enunciated  is  the  case  of  The  Eliza  Cornish  or 
Segredo,  1  Eccl.  &  Adm.  36,  before  the  judge  of  the  Court  of  Ad- 
miralty. If  this  case  be  an  authority  for  the  proposition  that  a  law 
of  a  foreign  country  of  the  nature  of  the  law  of  Norway,  as  proved 
in  the  present  case,  is  not  to  be  regarded  by  the  courts  of  this  coun- 
try, and  that  its  effect  as  to  passing  property  in  the  foreign  country 
is  to  be  disregarded,  we  cannot  agree  with  the  decision ;  and,  with  all 
the  respect  due  to  so  high  an  authority  in  mercantile  transactions,  we  do 
not  feel  ourselves  bound  by  it  when  sitting  in  a  Court  of  Error.  We 
must  remark  also,  that  in  the  case  of  Freeman  v.  East  India  Com- 
pany, 5  B.  &  Aid.  617  (E.  C.  L.  R.  vol.  7),  the  Court  of  Queen's  Bench 
appears  to  have  assented  to  the  proposition  that  the  Dutch  law,  as  to 
market  overt,  might  have  had  the  effect  of  passing  the  property  in 
such  case  if  the  circumstances  of  the  knowledge  of  the  transaction  had 
not  taken  the  case  out  of  the  provisions  of  such  law. 

In  the  present  case,  which  is  not  like  the  case  of  Freeman  v.  East 
India  Company,  the  case  of  an  English  subject  purchasing  in  an  Eng- 
lish colony  property  which  he  was  taken  to  know  that  the  vendor  had 
no  authority  to  sell,  we  do  not  think  that  we  can  assume  on  the  evi' 
dence  that  the  purchase  was  made  with  the  knowledge  that  the  sellers 
had  no  authority,  or  under  such  circmnstances  as  to  bring  the  case 
within  any  exception  to  the  foreign  law,  which  seems  to  treat  the 
master  as  having  sufficient  authority  to  sell,  so  as  to  protect  the  in- 
nocent purchaser  where  there  is  no  representative  of  the  real  owner. 
It  should  be  remarked  also,  that  Lord  Stowell  in  the  passage,  cited  in 
the  case  of  Freeman  v.  East  India  Company,  from  his  judgment  in 
the  case  of  The  Gratitudine,  states  that  if  the  master  acts  unwisely  in 
his  decision  as  to  selling  still  the  foreign  purchaser  will  be  safe  un- 
der his  acts.  The  doctrine  of  Lord  Stowell  agrees  much  more  with 
the  principles  on  which  our  judgment  proceeds  than  with  those  re- 
ported to  have  been  approved  of  in  the  case  of  The  Eliza  Cornish,  as, 
on  tlie  evidence  before  us^_^e,xa4-"mot  tr£aJL_Clausen  otherwise  than  jis 
an  mnocent  purchaser,  and  as  the  law_of.,Norway  appears  to  us,  on 


Ch.    1)  PROPERTY.  285- 

the  evidence,  Jo_give^^_tItle  to  aninnocent  purchaser,  we  think  that 
the  property  vested  in  him,  and  jrTthe  defendants  as  subpurchasers 
from  him;  andnhat,  Tiaving  once  so  vested,  it  did  not  become  divested 
by  its^]5elng^  subsequentl}[jrouglit  to  this  country,  and,  theretore,  that 
the  judgment  oi  the  Court  of  Exchequer  should  be  affirmed. 

CocKBURN_,  C.  J.  Concurring  in  the  judgment  dehvered  by  my 
Brother  Crompton,  it  further  appears  to  me  that  the  case  may  also  be 
put  upon  another  and  a  shorter  ground. 

Although  the  goods  in  question  were  at  one  time  the  property  of 
English  owners,  the  property  in  them  was  transferred  to  others  by  a 
sale  valid  according  to  the  law  of  Norway,  a  country  in  which  the 
goods  were  at  the  time  of  such  sale. 

Even  if  it  were  admitted,  for  th^  purpose  of  argument,  that  by  the 
law  of  the  country  to  which  the  ship  belonged  the  master  would  not 
have  had  the  power  to  dispose  of  the  ship  or  cargo  in  case  of  wreck, 
which  the  law  of  Norway  gives  in  such  a  case,  and  that  the  law  of 
Norway  would  be  overridden  by  the  law  of  the  nation  to  which  the  ship 
belonged,  then  it  is  to  be  observed  that,  the  ship  having  been  a  Prus- 
sian ship,  and  the  carriers,  the  shipowners,  Prussians,  and  the  goods 
having  been  shipped  in  Russia,  the  power  of  the  master  must  depend 
on  the  law  either  of  the  country  to  which  the  ship  belonged,  or  of 
the  place  where  the  contract  to  carry  was  entered  into.  The  law  of 
England,  never  having  attached  to  the  goods,  as  they  never  were  on 
board  an  English  vessel  or  reached  British  territory,  cannot  apply  to 
the  case.  The  law  of  nations  cannot  determine  the  question,  for  the 
international  law  is  by  no  means  uniform  as  to  the  powers  of  a  master, 
as  abundantly  appeared  from  the  various  codes  which  were  brought  to 
our  notice  during  the  argument.  But  no  evidence  was  adduced  to 
show  what  was  the  law  of  Prussia  or  that  of  Russia  in  the  matter 
in  question. 

The  case  therefore  stands  nakedly  thus — a  good  contract  of  sale  to 
transfer  the  property  in  Norway,  without  "anything  to  show  that  by 
the  general  law  of  nations,  or  by  the  law  of  any  nation  which  can 
possibly  apply  to  the  present  case,  the  sale  valid  in  Norway  'can  be  in- 
validated elsewhere.^" 


(V^^ 


OLIVIER  v.  TOWNES.  7  ^  o^*^^^  H       j 

(Supreme  Court  of  Louisiana,  1824.    2  Mart.  [N.  S-l  93.)         t^AL^^^^o^^  *        ' 

Defendant,  John  D.  Townes,  owned  one-half  interest  in  the  vessel  Vaa^^  ^^^^i  i 
Averick,  which  arrived  in  the  port  of  New  Orleans  on  July  22,  1833.  ruJiAj  ^  tV.^Jr^ 
The  vessel  which  was  insured  by  the  Louisiana  State  Insurance  Com-  y^^^JcJif  o^  tA^^^* 

pany  was  lost  on  the  way  to  Liverpool.     A  creditor  of  Townes  there-      .  .     ^^^ 

upon  brought  this  action  by  attachment,  praying  that  the  attachment  ^  Ca^^Lxa^^^**"^     . 

10  See,  also.  Inglis  v.  Usherwood,  1  East,  515  (1801),  and  Alcock  v.  Smith,  «  / 

[1892]  1  Ch.  238.    Compare  Northwestern  Bank  v.  Poynter,  [1895]  A.  C.  56.        |V^  iLO'*^  ^ 


^' V 


286 


TARTICULAR  SUBJECTS. 


(Part  Z 


0\^ 


(T^ 


V 


A. 


Mr 


be  levied  on  the  debt  owing  to  Tovvnes  by  the  insurance  company 
and  that  the  company  be  made  a  garnishee.  The  attachment  was 
levied,  and  in  its  answer  the  garnishee  set  up  that  the  interest  of 
Townes  in  the  vessel  had  been  conveyed  to  R.  C.  Ward  &  Co.,  who 
intervened  in  the  action.  The  bill  of  sale  was  executed  by  Townes 
in  the  state  of  Virginia  on  July  24,  1823,  and  contained  a  clause  that 
the  vessel  was  to  be  delivered  in  Liverpool.  The  court  below  gave 
judgment  for  Ward  &  Co.,  and  the  petitioners  appealed.^ ^ 

Porter,  J.^-  *  *  *  On  the  facts,  therefore,  we  have  presented 
the  case  of  a  creditor  attaching  property  of  his  debtor,  before  it  was 
transferred  by  sale  and  delivery,  and  it  has  been  so  repeatedly  decided 
in  this  court  that  this  may  be  done,  and  that  nothing  short  of  actual 
delivery  will  defeat  this  right,  that  it  would  be  sufficient  to  refer  to 
this  jurisprudence  as  settling  the  right  of  the  parties  now  before  us, 
were  it  not  for  the  great  pains  taken  by  the  counsel  to  show  that  this 
doctrine  is  incorrect,  if  extended  to  cases  when  the  vendor  and  vendee 
both  live  in  a  country  where  a  different  rule  on  the  subject  of  the  sale 
of  movable  property  prevails. 

This  point  is  not  new.  It  was  taken  in  the  case  of  Thuret  v,  Jenk- 
ins, 7  Mart,  318,  12  Am.  Dec.  508,  and  after  a  very  close  attention  to 
the  arguments  now  urged  by  the  counsel,  and  the  authorities  relied  on, 
we  are  obliged  to  confess  that  we  prefer  the  reasoning  and  the  law 
which  the  'counsel  for  the  appellee  favored  us  with  in  the  case  just 
cited,  when  his  professional  duty  required  him  to  support  the  opposite 
doctrine  from  that  for  which  he  now  contends. 

The  position  assumed  in  the  present  case  is  that  by  the  laws  of  all 
civilized  countries,  the  alieiiatioi 


alil£-.Broperty7^musr~5^  deter- 


mined accofdmg  "tCLthejaw-S^-j^iles^  and  regulaj[gns_in,f nrre . 
owner's  domicile  is  situated:  hence  it  is  insisted  that,  as  by  the_2aw 
cxistmg  in  tHe~stale"where'T!ie  vendor  lived^no_iielixery_:\^asjiecessary 
to  complete  the  sale,  it  must  be  conslHered  as  complete  here,  and  that 
it  is  a~violation~onhe  principle  just  referred  to,  to  apply  to  the  con- 
tract, rules  which  are  peculiar  to  our  jurisprudence,  and  different  from 
those  contemplated  by  the  parties  to  the  contract. 

We  readily  yield  an  assent  to  the  general  doctrine  for  which  the  ap- 
pellee contends.  He  has  supported  it  by  a  variety  of  authorities  drawn 
from  different  systems  of  jurisprudence.  But  some  of  those  very 
books  furnish  also  the  exception  on  which  we  think  this  casejmjst  be 
decided,  namely,  that  'Vhen"those"Iaws~cTash  wTtTr^anc 


interfere  with 

the  rights  of  the  riTiTFfrnf  the~COTiTrtrtes_vvhere'ttTe~paftres  to  the_con- 
tract  seek  tojeniorce  it,  as  one  or  other  of  them  must  give  way,  those 
prevajlmgwhe  rj  the,jelief  Is  sought  must  hayeJJLe^jreference/'  Such 
is  the  language  of  the  English  book  to  which  we  have  been  referred, 
and  Huberus,  whose  authority  is  more  frequently  resorted  to  on  this 

11  The  statement  of  facts  has  been  abstracted  from  the  opinion. 
12A  part  of  the  opinion  has  been  omitted. 


Ch.  1) 


PROPERTY. 


287 


subject  than  any  other  writer,  because  he  has  treated  it  more  extensive- 
ly and  with  greater  abiHty,  tells  us  in  his  treatise  De  Conflictu  L,egum : 
"Effecta  contractuum  certo  loco  initorum,  pro  jure  loci  illius  alibi  quoque 
observantur  si  nullum  inde  civibus  alienis  creetur  prejudicium,  en  jure 
sibi  quaesito."  "The  pffprfg  nf  ^  c'^n tract  entered Jnto  at  any  place  will 
be  allowed  according  to  the  law  of  that  place,  in  "other  countries,  if  no 
inconvenience  1-esuits  theretrom.  to' the 'citizens  of  that  other  country 
with  respect  to  the  law  which  they  demand."  This  distinction  appears 
to  us  founded  on  thesoundest  reasons.  The  municipallaws  of  a  coun- 
try  have  no  torce  beyond  its  territorial  limits  and  when  another  ggx^ 
ernment  permits  these  Jo.  Jie_xarri£iLinto_effec^  within  her  jurisdiction, 
she  does  soJupon322rincip[e_^tf_comity.  In  doing  so  care  must~T)e 
taken  that  no  injury  is  inflicted  on  her  own  citizens,  otherwise  justice 
would  be  sacrificed  to  courtesy,  nor  can  the  foreigner  or  stranger 
complain  of  this.  If  he  jendsjiisj) roper ty_ within  a  jurisdiction  dif- 
ferent from  that  where  he  resides,  he  impliedly  submits"Trio~TlTe  rules 
and  rpp-n1atinns  in  force  in  _the  country  where  he  places^  it.  What 
the  law  protects  it  lias  a  righ£jto_re^iilaJ£.  A  strong  evidence  of  this 
is~furiiished  by  the  doctrine  in  regard  to  successions.  The  general 
principle  is,  that  the  personal  property  must  be  distributed  according 
to  the  law  of  the  state  where  the  testator  dies,  but  so  far  as  it  con- 
cerns creditors,  it  is  governed  by  the  law  of  the  country  where  the 
property  is  situated.  If  an  Englishman  or  a  Frenchman  die  abroad 
and  leaves  effects  here,  we  regulate  the  order  in  which  his  debts  are 
paid,  by  our  jurisprudence,  not  that  of  his  domicile.     *     *     * 

We  proceed  to  examine  whether  giving  effect  to  the  law  of  Vir- 
ginia, on  the  contract  now  set  up,  would  be  working  an  injury  to 
this  state,  or  its  citizens.  In  doing  this  we  must  look  to  the  general 
doctrine,  and  the  effect  it  would  have  on  our  ordinary  transactions, 
as  well  as  its  operation  in  this  particular  case.  If  we  held  here  that 
this  sale  can  defeat  the  attachment,  we  should,  on  the  same  principle, 
be  obliged  to  decide  that  the  claimant  would  hold  the  object  sold  in 
preference  to  a  second  purchaser  to  whom  it  was  delivered.  The 
rule  being,  that  when  the  debtor  can  sell  and  give  to  the  buyer  a  good 
title,  the  creditor  can  seize,  or  in  other  words  where  the  first  sale  is 
not  complete  as  to  third  persons,  the  creditor  may  attach  and  acquire 
a  lien.  McNeill  v.  Glass,  1  Mart.  (N.  S.)"261.  ][nj;elatiQaJii_jnaj- 
able  propertY^  our  Jaw  has  provided  that  delivery  is  essential__to  coin.- 
plete  the  contract  of'7al£_JliLlLLllui'J  parties.  This  valuable  provision 
by  which  all  our  citizens  are  bound  in  their  dealings,  protects  them 
from  the  frauds  to  which  they  would  be  daily  snbject,  were  they 
liable  to  be  affected  by  previous  contracts  not  followed  by  the  giving 
of  possession.  The  exemption  contended  for  here,  in  behalf  of  the 
residents  of  another  state,  would  deprive  them  of  that  protection 
wherever  their  rights,  as  purchasers,  came  in  contact  with  strangers, 
a  protection  which  it  may  be  remarked,  it  is  of  the  utmost  importance, 
owing  to  our  peculiar  position,  we  should  carefully  maintain.     This 


% 


288  PARTICULAR  SUBJECTS.  (Part  2 

city  is  becoming  a  vast  storehouse  for  merchandise  sent  from  abroad, 
owned  by  nonresidents,  and  deposited  here  for  sale,  and  our'  most 
important  commercial  transactions  are  in  relation  to  property  so  situ- 
ated. If  the  purchasers  of  it  should  be  affected  by  all  the  previous 
•contracts  made  at  the  owner's  domicile,  although  unaccompanied  by 
■delivery,  it  is  easy  to  see  to  what  impositions  such  a  doctrine  would 
lead,  to  what  inconvenience  it  would  expose  us,  and  how  severely  it 
would  check  and  embarrass  our  dealings.  However  anxious  we  may 
be  to  extend  courtesy,  and  afford  protection  to  the  people  oF  other" 
countries  who  comg_  iheTTTSEfag&r-Qf~~settd^-theiT~^roperTy^^itJ^^ 
jurisdiction,  we  cannot  indulge  our  feelings  so  lar  as  to  give  a__deci- 
sion  that  would  let  in  sucbLconsequences^as^  weJ.iaye  just  spoken  of . 
It  would  be  giving  to  the  foreign  purchaser  an  advantage  which  the 
resident  has  notT^and  that,  frequently,  a.t  the"  expense  of  the_Jatter. 
This,  in  the  language  of  the  faw,  we  think  would  be  a  great  incon- 
venience to  the  citizens  of  this  state,  and  therefore  we  cannot  sanc- 
tion it. 

On  looking  into  the  record,  for  the  purpose  of  giving  final  judg- 
ment, we  observe  that  the  proceedings  have  been  carried  on  below 
without  an  attorney  being  appointed  to  represent  the  absent  debtor. 
The  case  must  therefore  be  remanded  for  trial  between  the  peti- 
tioner and  defendant. 

It  is  therefore  ordered,  adjudged,  and  decreed,  that  the  judgment 
of  the  parish  court  be  annulled,  avoided,  and  reversed,  and  that  the 
claim  of  the  intervening  creditor  be  overruled,  and  that  the  case  be 
remanded  for  a  new  trial  between  the  petitioner  and  defendant,  the 
.appellee  paying  costs  of  this  appeal. 


S.]  1007.) 


^  <^ ^^^'^'^'"''^^^^^^'^T^       a^^  SCHMIDT  v.   PERKINS. 

^     j9>CA>»^    >t>>*'"^<Court  of  Errors  and  Appeals  of  New  Jersey,  1907.    67  Atl.  77,  11  L.  R.  A.  [N. 


SwAYZE,  J.    This  is  an  action  of  r^levin  involving  the  title  to  cer- 
tain engines,  formerly  the  property  of  the  Whitehead  Machinery  Com- 
ijkj^    ^   Cy^  pany,  an  Iowa  corporation.     The  plaintiffs  claim  under  a  sale  made 

to  them  in.Jowa_on  October  j4^_1911aA^  the  defeiidants^un der  an~attaai- 
^  ment  out  of  the  Hudson~^ircuit  ]ejvied  at  Jerse,y_.-Cit^L£ktQber__77]l905. 

aAjU*^    '  j    '         The  plaintiff's  are  l^esTdenti^oT  Iowa.     The  residence  of  the  plaintiff 
-f-ixdbt^        ill  attachment  is  not  shown,  but  seems  to  have  been  in  Illinois,  and 
'^jXA  O*  J^^^^  |.|^g  applying  creditor  is  a  resident  of  that  state.     The  actual  situs  of 

I       niO.  (aJ^^^'^^^   ■*  ^^^  engines  from  the  time  they  were  bought  by  the  Whitehead  Ma- 
T^''^5--^  1        chinery  Company  early  in  1904  to  the  date  of  the  attachment,  more 

,  A^jjf  oJij^f^^^"^        than  a  year  and  a  half,  was  in  Jersey  City,  where  they  were  in  the 
I  custody  of  the   Pennsylvania  Railroad.     They  had  been  bought  by 

JCto   "^O^^  the  Whitehead  Company,  which  dealt  in  secondhand  machinery,  for 


(i-Jlr  MnOU.,^      (A(sMji      OiA-^ntc  ^  W^',       C'*^^    /t^  t-^t^ 


Ch.    1)  PROPERTY.  289 

purpose  of  resale,  and  the  evident  intent  was  to  leave  them  in  Jer- 
sey City  until  they  were  actually  sold.  Notice  of  the  sale  to  the  plain- 
tiffs was  immediately  given  to  the  Pennsylvania  Railroad  Company. 
The  sale  was  for  the  purpose  of  satisfying  a  note  of  the  Whitehead 
Company  dated  November  1,  1904,  payable  one  year  after  date  and 
indorsed  by  the  plaintiffs.  This  note  was  held  by  an  Iowa  bank,  and 
was  paid  by  the  plaintiff's  October  4,  1905,  the  day  of  the  sale  to  them. 
One  of  the  plaintiffs  was  a  director  of  the  Whitehead  Company  at 
the  time,  one  had  been  but  had  resigned  some  time  before,  and  two 
had  acted  as  directors  upon  the  supposition  that  five  were  required, 
but  had  discovered  previous  to  October  -ith  that  only  three  were  au- 
thorized.    All,  however,  took  part  in  the  transaction. 

At  the  trial  the  solution  of  the  question  at  issue  was  treated  by 
counsel  on  both  sides  as  dependent  upon  the  law  of  Iowa  as  to  trans- 
fers of  property  of  an  insolvent  corporation  to  its  directors,  and  evi- 
dence was  taken  on  that  subject  by  the  plaintiffs  and  defendants. 
The  trial  judge  directed  a  verdict  for  the  plaintiffs,  to  which  excep- 
tion was  duly  taken.  At  the  argument  in  this  court  it  was  for  the 
first  time  suggested  that  the  title  was  governed  by  the  law  of  New 
Jersey,  and  counsel  were  allowed  to  submit  supplemental  briefs. 

We  think  the  case  was  tried  by  counsel  upon  an  erroneous  theor}^ 
The  title  to  tangible  personal  property  is  ordinarily  governed  by  the  «A^ 

law  of  its  situs.     The^jm^jnm^^^^Mj^^  seqnim_tur/^tates        -^a  ■  i         ^^ 

a  mere  fiction  of  law  which  it  is  sometimes  necessary  to  apply  in 
order  to  do  justice,  but  it~ought  not  to  be  extended  beyond  that  neces- 
sity.  Our  Supreme  Court  long  ago  recognized  the  absurdity  of  af- 
TTrmmg  that  goods  found  within  the  jurisdiction  of  the  state  are  not 
subject  to  its  laws  (Varnum  v.  Camp,  13  N.  J.  Law,  326,  2-5  Am. 
Dec.  476),  and  more  than  50  years  later,  in  Cronan  v.  Fox,  50  N.  J. 
Law,  417,  14  Atl.  119,  this  court  said:  "The  rule  that  the  title  to 
movable  property  is  to  be  judged  of  and  determined  by  the  lex  rei 
sitae  (which  is  not  without  exceptions)  has  prominent  application  and 
adoption  where  personal  property  is  seized  under  process  issued  from 
the  courts  of  the  state  where  the  property  is."  The  learned  judge 
who  wrote  the  opinion  in  that  case  did  not  state  the  exceptions  to 
which  he  referred.  He  may  have  had  -in  mind  cases  of  choses  in  ac- 
tion, sometimes  classed  as  movables  and  subject  to  the  maxim  above 
quoted  (Moore  v.  Bonnell,  31  N.  J.  Law,  90)  ;  cases  where  both 
claimants  have  the  same  domicile  (Runvnn  yv_Groshon^  12  N.  J.  Eq. 
86;    Northwestefn^^nF^^  A.  C.  56,  64  L.  J.  H.  L. 

27)  ;  cases  where  the  conveyance  is  itself  sufficient  to  pass  tilJe.  and 
the  only  invalidity  arises  out  of  the  proposed  metho^d  of  distribut- 
ing  the  proceeds,  and  the  objection  is  made  by  creditors  not  resident 
in  New  Jersey  (Bentlevjv.  Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec. 
671)  ;  or  cases  where  the  goods  are  merely  in  transitu  (Savigny  on 
Private  International  Law  [Eng.  translation]  135,  of  which  rule  Kno^y- 
les_Loom_\Vorks  v.  Vacher.  57  N.  J.  Law,  490,  31  Atl.  306,  33  L. 
jOR.Conf.L.— 19 


290  PARTICULAR  SUBJECTS.  (Part  2 

R.  A.  305,  affirmed  59  N.  J.  Law,  586,  39  Atl.  1114,  seems  the  near- 
est illustration  in  our  Reports.  We  have  recently  reviewed  the  cases 
in  Cooper  v.  Philadelphia  Worsted  00.,^=^  G8  N.  J.  Eq.  622,  60  Atl. 
352.  None  of  the  exceptions  are  applicable  to  the  present  case. 
The  cases  of  an  assignment  with  preferences  and  of  goods  in  transitu 
are  most  like  it.  The  latter  exception  is  not  in  point,  since  the  goods 
were  stored  in  Jersey  City  for  more  than  a  year  and  a  half  and  with- 
out any  present  intent  of  removal,  unless  in  the  event  of  a  resale. 
The  former  exception,  which  was  the  case  of  Bentley  v.  Whittemore, 
is  not  in  point,  since  in  that  case  the  conveyance  itself  was  sufficient 
under  our  law.  It  was  only  the  method  of  distribution  to  which  the 
conveyance  was  ancillary  that  militated  with  the  provisions  of  our 
statute.  It  was  therefore  quite  possible  to  sustain  the  conveyance 
in  that  case,  and  disregard  the  provision  for  a  preference  among  cred- 
itors in  the  distribution.  In  the  present  case  it  is  the  conveyance  it- 
self which  is  voidable  by  creditors  for  reasons  to  be  stated  hereafter. 
The  court  took  pains  to  point  out  in  Bentley  v.  Whittemore  the  dis- 
tinction between  a  defect  in  the  conveyance  itself  and  a  defect  in  the 
scheme  to  which  the  conveyance  was  ancillary.  Such  a  distinction 
was  quite  essential  to  the  decision  of  that  case,  since  the  title  to  land 
came  in  question.  The  court  said :  "No  doubt  is  intended  to  be  hint- 
ed as  to  the  settled  existence  of  the  rule  that  the  validity  of  every 
disposition  of  real  estate  must  depend  upon  the  law  of  the  country 
in  which  that  estate  is  situated." 

Cronan  v.  Fox  was  decided  20  years  after  Bentley  v.  Whittemore, 
and  in  our  judgment  enunciates  the  rule  that  must  govern  the  pres- 
ent controversy.  This  case  is,  indeed,  the  converse  of  that.  There 
the  conveyance  was  invalid  in  Maryland,  but  valid  in  New  Jersey. 
Here  the  conveyance  is  said  to  be  valid  in  Iowa,  but  invalid  in  New 
Jersey.  In  that  case  we  protected  the  grantee  against  the  process 
of  our  own  courts.  If  there  is  any  difference,  it  is  in  favor  of  sus- 
taining a  seizure  under  the  process  of  our  courts,  as  we  are  now  ask- 
ed to  do.  One  of  the  attaching  creditors,  and  probably  both,  are  not 
residents  of  Iowa,  and  hence  are  not  to  be  held  as  bound  by  the  law 
of  that  state.  We  therefore  see  no  difficulty  in  the  way  of  holding 
that  the  title  to  the  goods  is  to  be  determined  by  the  law  of  New  Jer- 
sey. 

The  law  of  this  state,  independent  of  section  64  of  the  corporation 
act  (P.  L.  1896,  p.  298),  is  that  directors  of  an  insolvent  corpora- 
tion are  trustees  of  its  funds  for  its  creditors,  and  subject  to  the  rule 
that  a  trustee  cannot  use  property  for  his  own  benefit  to  the  disad- 
vantage of  the  cestui  que  trust.  It  follows  that  directors,  who  are 
creditors,  stand  upon  the  same  footing  as  any  other  creditor,  and 
cannot  by  any  act  of  their  own  obtain  a  position  superior  to  that  of 
other  creditors   for  whose  benefit  they  hold  the  trust  assets.     This 

18  By  mistake  for  Lees  v.  Harding,  Whitman  &  Co. 


Ch.    1)  PROPERTY.  291 

wholesome  doctrine  was  established  at  a  time  when  our  statute  did 
not  contain  the  provisions  now  embodied  in  section  64.  Montgom- 
ery V.  Phillips,  53  N.  J.  Eq.  203,  217,  31  Atl.  622.  The  rule  applies 
only  to  directors.  Savage  v.  Miller,  56  N.  J.  Eq.  432,  36  Atl.  578, 
39  Atl.  665.  The  facts  of  this  case  suggest  the  query  whether  the 
same  rule  would  be  applicable  to  directors  who  are  such  only  de  facto ; 
but  it  is  not  necessary  to  decide  this  question.  One  of  the  four  to 
whom  the  engines  were  sold  was  actually  a  director.  All  seem  to 
have  taken  part  in  the  transaction  and  to  have  known  of  what  our 
law  deems  a  breach  of  trust.  If  so,  they  can  no  more  profit  thereby 
than  the  director  himself. 

A  conveyance  of  property  held  in  trust,  by  which  a  trustee  attempts 
to  secure  an  advantage  for  himself  as  against  his  cestui  que  trust,  is 
voidable  by  the  cestui  que  trust.  Staats  v.  Bergen,  17  N.  J.  Eq.  554, 
558 ;  Romaine  v.  Hendrickson's  Ex'rs,  27  N.  J.  Eq.  162,  affirmed 
28  N.  J.  Eq.  275 ;  Bassett  v.  Shoemaker,  46  N.  J.  Eq.  538,  20  Atl. 
52,  19  Am.  St.  Rep.  435.  The  question  usually  arises  in  equity,  but 
there  is  no  reason  why  the  sale  should  not,  like  other  fraudulent  sales 
of  personal  property,  be  avoided  at  law.  In  this  case  the  attaching 
creditors  occupy  the  position  of  cestuis  que  trustent  and  the  plain- 
tiffs the  position  of  trustees  or  vendees  with  notice.  The  attachment 
was  in  itself  an  election  to  avoid  the  sale.  The  rule  of  IMontgomery 
V.  Phillips  applies  only  to  insolvent  corporations,  and,  unless  there 
was  evidence  of  insolvency  on  October  4,  1905,  the  direction  of  ver- 
dict for  the  plaintiffs  was  correct.  We  think  there  was  persuasive 
evidence  of  insolvency  within  the  meaning  of  the  word  in  our  law. 
National  Bank  of  the' Metropolis  v.  Sprague,  21  N.  J.  Eq.  530,  538; 
Skirm  v.  Eastern  Rubber  Mfg.  Co.,  57  N.  J.  Eq.  179,  184,  40  Atl. 
769.  It  is  unnecessary  to  recite  the  evidence  which  leads  us  to  this 
view,  since  the  question  is  one  of  fact,  which  must  be  determined  by 
a  jury. 

The  judgment  must  be  reversed,  and  the  record  remitted  for  a 
new  trial. ^* 

14  The  actual  situs  determines  also  the  jurisdiction  of  courts  over  proceed- 
ings in  rem,  and  a  judgment  rendered  by  such  a  court  will  be  recognized  in 
every  other  jurisdiction.     Castrique  v.  Imrie,  L.  R.  4  H.  L.  414  (1870). 

Tangible  property  can  be  attached  only  in  the  jurisdiction  where  it  is  ac- 
tually situated.  Bowen  v.  Pope,  125  111.  28,  17  N.  E.  64,  8  Am.  St.  Rep.  330 
(1888). 

Tangible  personal  estate  may  be  taxed  in  the  jurisdiction  where  it  is  situ- 
ated, irrespective  of  the  nonresidence  of  its  owner.  Pullman's  Palace  Car  Co. 
V.  Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct.  876,  35  L.  Ed.  613  (1891)  ;  Ayer 
&  Lord  Tie  Co.  v.  Kentucky,  202  U.  S.  409.  26  Sup.  Ct.  679,  50  L.  Ed.  1082 
(1906).  Provided,  however,  that  such  property  has  not  merely  a  temporary 
situs  within  such  state,  but  has  been  actually  incorporated  into  the  property 
of  such  state.  Hays  v.  Pacific  Mail  S.  S.  Co.,  17  How.  596,  15  L.  Ed.  2.14 
n854)  ;  Old  Dominion  S.  S.  Co.  v.  Virginia,  198  U.  S.  299,  25  Sup.  Ct.  680. 
49  L.  Ed.  1059  (1905).  If  such  property  is  situated  permanently  outside  of 
the  state  in  which  its  owner  is  domiciled,  the  state  of  the  domicile  has  no. 
power  to  tax  the  property.     Union  Refrigerator  Transit  Co.  v.  Kentucky,  199 


292  PARTICULAR  SUBJECTS,  (Part  2 

-    fcic    A^""^^        (Supreme  Court  of  the  United  States,  1866,  1868.    5  Wall.  307,  18  L.  Ed.  599 ; 
^^  7  Wall.  139,  19  L.  Ed.  109.) 

Motion  to  dismiss  a  writ  of  error  to  the  Supreme  Court  of  the 
state  of  New  York. 

The  Constitution  of  the  United  States  declares  (section  1,  art.  4) 
that  full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  state;  and  that 
Congress  may  by  general  laws  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Under  the  power  here  conferred,  Congress,  by  Act  May  26,  1790, 
c.  11,  1  Stat.  122,  provides  that  records,  authenticated  in  a  way  which 
it  prescribes,  shall  "have  such  faith  and  credit  given  to  them  in  every 
other  court  of  the  United  States,  as  they  have  by  law  or  usage  in 
the  court  from  which  they  are  taken." 

With  this  provision  of  the  Constitution  and  this  law  in  force,  Bates 
being  the  owner  of  certain  iron  safes  at  Chicago,  in  the  state  of  Illi- 
nois, on  the  3d  day  of  November,  ISS^fTexecute^d^and  delivered,  in  the 
state  of  New  Yqrk^  to^;Va"n  Busk  irk  a£doth£rs^IiL£EaI^_mortgage_o| 
them.  On  the  5th  day^  of  tlie  sarniln2rTnjji__Crggp  ranged Jio  be  levied 
on  the  same  safes  a^ writ  of  attachment,  suedjbyjaim  Dut  of  the  proper 
court  in  Illinois,  agains^thg^-pr^pefty  of  Bate%.  The  attachment  suit  ^ 
proceeded  to  judgiiient,  and  the  safeT"werer,SQld-ia_satis faction  of 
Green's^_debt.  Van  BusTorIc7  Green,  and  Bates,  were  all  citizens  of 
New  York.  nrppr/^_att^rlirnpn<'  ''^■as^evied  on^jhg  safes  as_the_jiroi)- 
erty  of  Bates,  beTore  tbe^iossession  was  delivered  to  Van  Buskirk, 

U.  S.  194,  26  Sup.  Ct.  36,  50  L.  Ed.  150  (1905).    Compare  People  of  State  of  New 
York  V.  Miller,  202  U.  S.  .584,  26  Sup.  Ct.  714,  50  L.  Ed.  1155  (1906). 

As  to  gifts  causa  mortis,  see  Emery  v.  Clough,  63  N.  H.  552,  4  Atl.  706,  56 
Am.  St.  Rep.  543  (1SS6). 

Continental  Law. — Italy. — "Personal  propeily  shall  be  governed  by  the 
national  law  of  the  owner,  excepting  dispositions  to  the  contrary  in  the  law 
of  the  country  where  it  is  situated."  Article  7,  Prel.  Disp.  Civ.  Code.  See, 
also,  P.  Esperson,  8  Clunet,  210-214. 

In  France  and  Germany  the  law  of  the  situs  is  held  to  control.  App.  Douai, 
Dec.  11,  1891  (D.  1894,  2,  193),  and  note  by  Ch.  de  Boeck.  To  the  effect  that 
it  governs  even  as  between  the  parties,  see  R.  G.  Feb.  24,  1897  (8  Niemeyer, 
46)  ;  O.  L.  G.  Hamburg,  May  18,  1894  (5  Niemeyer,  286).  It  determines,  al- 
so, what  constitutes  delivery.    11  R.  G.  52  (Feb.  15,  1881). 

If  the  title  has  not  passed  under  the  lex  rei  sitae,  and  the  chattel  is  brought 
into  a  jurisdiction  under  whose  law  it  would  have  passed,  effect  will  be  given 
to  the  original  contract,  provided  the  intent  of  the  parties  to  transfer  title 
has  not  changed  in  the  meanwhile.  O.  L.  G.  Zwei-briicken,  July  13,  1898  (10 
Niemeyer,  220). 

Gifts  causa  mortis  are  not  recognized  in  France.  Article  893,  Civ.  Code ; 
Cass.  May  14,  1900  (D.  1900.  1.  3.5S).     In  Germany  the  rules  relating  to  succes-  I 

sion  apply  to  them.  If  such  gifts  are  actually  executed  in  the  lifetime  of  the  j 
donor,  tEe  provisions  with  respect  to  donations  govern.  Section  2300.,  Civ.  ' 
Code. 


Ch.    1)  PROPERTY.  293 

and  before_themortg-age_from  Bates  to  him  was  recorded,  and  before 
notice  of  its  existence. 

VarT^Buskirk  afterwards_sued_Gre£n,  in  the  New  York  courts,  for 
the  vakie  of  tEe'^aTes  thus  sold  under  his  attachment,  and  Green 
pleaded  the  proceedijig  in  the  court  of  IlHnois  in  bar  of  the  action. 
In  this'suit  thus  brought  by  him  in  the  New  York  courts,  Van  Buskirk 
obtained  judgment,  and  the  judgment  was  affirmed  in  the  highest 
court  of  the  state  of  New  York.  From  this  affirmance  Green  took  a 
writ  of  error  to  this  court,  assuming  the  case  to  fall  within  the  twenty- 
fifth  section  of  the  judiciary  act,  which  gives  such  writ  in  any  case 
wherein  is  drawn  in  question  a  clause  of  the  Constitution  of  the 'United 
States,  and  the  decision  is  against  the  title,  right,  or  privilege  special- 
ly set  up.  His  assumption  was  that  the  faith  and  credit  which  the 
judicial  proceedings  in  the  courts  of  the  state  of  Illinois  had  by  law 
and  usage  in  that  state,  were  denied  to  them  by  the  decision  of  the 
courts  of  New  York,  and  that  in  such  denial,  those  courts  decided 
against  a  right  claimed  by  him  under  the  above-mentioned  section  1, 
art.  4,  of  the  Constitution,  and  the  act  of  Congress  of  May  26,  1790, 
on  the  subject  of  it. 

Miller,  J.^^  The  section  of  the  Constitution  discussed  in  this  case 
declares  that  "full  faith  and  credit  shall  be  given  in  each  state  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  state. 
And  that  Congress  may,  by  general  laws,  prescribe  the  manner  in 
which  such  acts,  records  and  proceedings  shall  be  proved,  and  the 
effect  thereof." 

The  act  of  1790  was  intended  to  be  an  exercise  of  the  power  confer- 
red upon  Congress  by  this  section.  In  the  leading  case  of  Mills  v. 
Duryee,  7  Cranch,  481,  3  L.  Ed.  411,  this  court  held  that  the  act  in 
question  did  declare  the  effect  of  such  judicial  records,  and  that  it 
should  be  the  same  in  other  states  as  that  in  which  the  proceedings  were 
had.  In  the  case  of  Christmas  v.  Russell,  5  Wall.  290,  18  h.  Ed.  475, 
decided  at  the  present  term  of  the  court,  we  have  reaffirmed  this  doc- 
trine, and  have  further  declared  that  no  state  can  impair  the  effect 
thus  to  be  given  to  judicial  proceedings  in  her  sister  state,  by  a  stat- 
ute of  limitation  intended  to  operate  on  demands  which  may  have 
passed  into  judgment  by  such  proceedings,  as  though  no  such  judg- 
ment had  been  rendered. 

The  record  before  us  contains  the  pleadings  in  the  case,  the  facts 
found  by  the  court,  and  the  conclusions  of  law  arising  thereon.  And 
notwithstanding  the  inverted  manner  in  which  the  court  has  stated 
its  legal  conclusions,  it  seems  clear  that  it  did  pass  upon  the  effect  of 
the  judicial  proceedings  in  Illinois  upon  the  title  of  the  property  in 
contest.  The  case  is  not  varied  by  declaring  that  the  mortgage  made 
and  delivered  in  New  York  overreached  the  subsequent  attachment 

15  The  dissenting  opinion  of  Nelson,  J.,  with  whom  concurred  Swayne,  J., 
has  been  omitted. 


294 


PARTICULAR  SUBJECTS. 


(Part  2 


in  Illinois.  According  to  the  view  taken  by  that  court,  Van  Buskirk, 
the  plaintiff,  had  title  to  the  property  under  the  laws  of  New  York 
by  virtue  of  his  mortgage,  and  the  question  to  be  decided  was  whether 
the  proceedings  in  Illinois  were  paramount  in  their  effect  upon  the 
title  to  the  New  York  mortgage. 

It  is  said  that  Van  Buskirk  being  no  party  to  the  proceedings  in 
Illinois  was  not  bound  by  them,  but  was  at  liberty  to  assert  his  claim 
to  the  property  in  any  forum  that  might  be  open  to  him ;  and,  strictly 
speaking,  this  is  true.  He  was  not  bound  by  way  of  estoppel,  as  he 
would  have  been  if  he  had  appeared  and  submitted  his  claim,  and  con- 
tested the  proceedings  in  attachment.  He  has  a  right  to  set  up  any 
title  to  the  property  which  is  superior  to  that  conferred  by  the  attach- 
ment proceedings,  and  he  has  the  further  right  to  show  that  the  proper- 
ty was  not  liable  to  the  attachment — a  right  from  which  he  would  have 
been  barred  if  he  had  been  a  party  to  that  suit.  And  this  question  of 
the  liability  of  the  property  in  controversy  to  that  attachment  is  the 
question  which  was  raised  by  the  suit  in  New  York,  and  which  was 
there  decided.  That  court  said  that  this  question  must  be  decided  by  the 
laws  of  the  state  of  New  York,  because  that  was  the  domicile  of  the 
owner  at  the  time  the  conflicting  claims  to  the  property  originated. 

We  are  of  opinionjliat  the  question  is  to  be  decided  by  the  effect 
given~by_the_JawiIol_Illinois,  where._the  property  was  situated,  to  th e 
proceedings  in  the  courts  of  that  state,  under  which  it  was  -soldr-* 

There  is  no  little^coiiflicfof  authority  on  the  general  question  as 
to  how  far  the  transfer  of  personal  property  by  assignment  or  sale, 
made  in  the  country  of  the  domicile  of  the  owner,  will  be  held  to  be 
valid  in  the  courts  of  the  country  where  the  property  is  situated,  when 
these  are  in  different  sovereignties.  The  learned  author  of  the  Com- 
mentaries on  the  Conflict  of  Laws,  has  discussed  the  subject  with  his 
usual  exhaustive  research.  And  it  may  be  conceded  that  as  a  ques- 
tion of  comity,  the  weight  of  his  authority  is  in  favor  of  the  proposi- 
tion that  such  transfers  will  generally  be  respected  by  the  courts  of 
the  country  where  the  property  is  located,  although  the  mode  of  trans- 
fer may  be  different  from  that  prescribed  by  the  local  law.  The  courts 
of  Vermont  and  Louisiana,  which  have  given  this  question  the  fullest 
consideration,  have,  howevei*,  either  decided  adversely  to  this  doctrine 
or  essentially  modified  it.  Taylor  v.  Boardman,  25  Vt.  589 ;  Ward 
V.  Morrison,  25  Vt.  593;  Emerson  v.  Partridge,  27  Vt.  8,  G2  Am. 
Dec.  617;  Olivier  v.  Townes,  2  Mart.  (N.  S.)  93;  Norris  v.  Mum- 
ford,  4  Mart.  (N.  S.)  20.  Such  also  seems  to  have  been  the  view  of 
the  Supreme  Court  of  Massachusetts.  Lanfear  v.  Sumner,  17  Mass. 
110,  9  Am.  Dec.  119. 

But  after  all,  this  is_a_nTere^princii3le  of  comity^between  jhecourt^, 
which  musLgive  wax-wlien  lEi_£taiutes  of  the  countrvvvdiere  prop- 
erty  is  situated,  or  the  established_poHcy  of  its  laws  prescribe  to.  its 
courts  a  different  rule.  .The"learned  commentator,  already  referred 
to,  in  speaking  of  tlie  law  in  Louisiana  which  gives  paramount  title 


Ch.    1)  PROPERTT.  295 

to  an  attaching  creditor  over  a  transfer  made  In  another  state,  which 
is  the  domicile  of  the  owner  of  the  property,  says :  "No  one  can  seri- 
ously doubt  that  it  is  competent  for  any  state  to  adopt  such  a  rule  in 
its  own  legislation,  since  it  has  perfect  jurisdiction  over  all  property, 
personal  as  well  as  real,  within  its  territorial  limits.  Nor  can  such  a 
rule,  made  for  the  benefit  of  innocent  purchasers  and  creditors,  be 
deemed  justly  open  to  the  reproach  of  being  founded  in  a  narrow  or 
a  selfish  policy."  Story  on  the  Conflict  of  Laws,  §  390.  Again, 
he  says :  "Every  nation,  having  a  right  to  dispose  of  all  the  property 
actually  situated  within  it,  has  (as  has  been  often  said)  a  right  to 
protect  itself  and  its  citizens  against  the  inequalities  of  foreign  laws, 
which  are  injurious  to  their  interests." 

Chancellor  Kent,  in  commenting  on  a  kindred  subject,  namely,  the 
law  of  contracts,  remarks  (2  Commentaries,  599):  "But,  on  this  sub- 
ject of  conflicting  laws,  it  may  be  generally  observed  that  there  is  a 
stubborn  principle  of  jurisprudence  that  will  often  intervene  and  act 
with  controlling  efficacy.  This  principle  is,  that  where  the  lex  loci 
contractus  and  the  lex  fori,  as  to  conflicting  rights  acquired  in  each, 
come  in  direct  collision,  the  comity  of  nations  must  yield  to  the  posi- 
tive law  of  the  land." 

In  the  case  of  Milne  v.  Moreton,  6  Bin.  (Pa.)  353,  6  Am.  Dec.  466, 
the  Supreme  Court  of  Pennsylvania  says,  that  "every  country  has  a 
right  of  regulating  the  transfer  of  all  personal  property  within  its 
territory;  but  when  no  positive  regulation  exists,  the  owner  transfers 
it  at  his  pleasure." 

The  Louisiana  court,  in  a  leading  case  on  this  subject,  gives,  in  the 
following  language,  a  clear  statement  of  the  foundation  of  this  prin- 
ciple :  "The  municipal  laws  of  a  country  have  no  force  beyond  its 
territorial  limits,  and  when  another  government  permits  these  to  be 
carried  into  effect  within  her  jurisdiction,  she  does  so  upon  a  principle 
of  comity.  In  doing  so,  care  must  be  taken  that  no  injury  is  inflict- 
ed on  her  own  citizens,  otherwise  justice  would  be  sacrificed  to  com- 
j|.y_  *  *  *  j£  ^  person  sends  his  property  within  a  jurisdiction 
dififerent  from  that  where  he  resides,  he  impliedly  submits  it  to  the 
rules  and  regulations  in  force  in  the  country  where  he  places  it." 

Apart  from  the  question  of  authority,  let  us  look  at  some  of  the  con- 
sequences of  the  doctrine  held  by  the  court  of  New  York. 

If  the  judgment  rendered  against  the  plaintiff  in  error  is  well 
founded,  then  the  sheriff  who  served  the  writ  of  attachment,  the  one 
who  sold  the  property  on  execution,  any  person  holding  it  in  custody 
pending  the  attachment  proceeding,  the  purchaser  at  the  sale,  and  all 
who  have  since  exercised  control  over  it.  are  equally  liable. 

If  the  judgment  in  the  state  of  Illinois,  while  it  protects  all  such 
persons  against  a  suit  in  that  state,  is  no  protection  anywhere  else,  it 
follows  that  in  every  case  where  personal  property  has  been  seized  un- 
der attachment,  or  execution  against  a  nonresident  debtor,  the  officer 
whose  duty  it  was  to  seize  it,  and  any  other  person  having  any  of  the 


296  PARTICULAR  SUBJECTS.  (Part  2 

relations  above  described  to  the  proceeding,  may  be  sued  in  any  other 
state,  and  subjected  to  heavy  damages  by  reason  of  secret  transfers 
of  which  they  could  know  nothing,  and  which  were  of  no  force  in 
the  jurisdiction  where  the  proceedings  were  had,  and  where  the  prop- 
erty was  located. 

Another  consequence  is  that  the  debtor  of  a  nonresident  may  be  sued 
by  garnishee  process,  or  by  foreign  attachment  as  it  is  sometimes 
called,  and  be  compelled  to  pay  the  debt  to  some  one  having  a  demand 
against  his  creditors;  but  if  he  can  be  caught  in  some  other  state,  he 
may  be  made  to  pay  the  debt  again  to  some  person  who  had  an  assign- 
ment of  it,  of  which  he  was  ignorant  when  he  was  attached. 

The  article  of  the  Constitution,  and  the  act  of  Congress  relied  on 
by  the  plaintiff  in  error,  if  not  expressly  designed  for  such  cases  as 
these,  find  in  them  occasions  for  their  most  beneficent  operation. 

We  do  not  here  decide  that  the  proceedings  in  the  state  of  Illinois 
have  there  the  effect  which  plaintiff  claims  for  them;  because  that 
must  remain  to  be  decided  after  argument  on  the  merits  of  the  case. 
But  we  hold  that  the  effect  which  these  proceedings  have  there,  by 
the  law  and  usage  of  that  state,  was  a  question  necessarily  decided 
by  the  New  York  courts,  and  that  it  was  decided  against  the  claim 
set  up  by  plaintiff  in  error  under  the  constitutional  provision  and 
statute  referred  to,  and  that  the  case  is  therefore  properly  here  for 
review. 

Motion  to  dismiss  overruled. 

Davis,  J.  That  the  controversy  in  this  case  was  substantially  ended 
when  this  court  refused  (5  Wall.  312,  18  L.  Ed.  599)  to  dismiss  the 
writ  of  error  for  want  of  jurisdiction,  is  quite  manifest  by  the  effort 
which  the  learned  counsel  for  the  defendants  in  error  now  make,  to 
escape  the  force  of  that  decision. 

The  question  raised  on  the  motion  to  dismiss  was,  whether  the  Su- 
preme Court  of  New  York,  in  this  case,  had  decided  against  a  right 
which  Green  claimed  under  the  Constitution,  and  an  act  of  Congress. 
If  it  had,  then  this  court  had  jurisdiction  to  entertain  the  writ  of  error, 
otherwise  not. 

It  was  insisted  on  the  one  side,  and  denied  on  the  other,  that  the 
faith  and  credit  which  the  judicial  proceedings  in  the  courts  of  the 
state  of  Illinois  had  by  law  and  usage  in  that  state,  were  denied  to 
them  by  the  Supreme  Court  of  New  York,  in  the  decision  which  was 
rendered. 

Whether  this  was  so  or  not,  could  only  be  properly  considered 
when  the  case  came  to  be  heard  on  its.  merits ;  but  this  court,  in  denial 
of  the  motion  to  dismiss,  held  that  the  Supreme  Court  of  New  York 
necessarily  decided  what  effect  the  attachment  proceedings  in  Illinois 
had  by  the  law  and  usage  in  that  state ;  and  as  it  decided  against  the 
effect  which  Green  claimed  for  them,  this  court  had  jurisdiction,  un- 
der the  clause  of  the  Constitution  which  declares  "that  full  faith  and 
credit  shall  be  given  in  each  state  to  the  public  acts,  records,  and  ju- 


Ch.    1)  PROPERTY.  297 

dicial  proceedings  in  every  other  state,"  and  the  act  of  Congress  of 
1790,  which  gives  to  those  proceedings  the  same  faith  and  credit  in 
other  states,  that  they  have  in  the  state  in  which  they  were  rendered. 

This  decision,  supported  as  it  was  by  reason  and  authority,  left 
for  consideration,  on  the  hearing  of  the  case,  the  inquiry,  whether  the 
Supreme  Court  of  New  York  did  give  to  the  attachment  proceedings 
in  Ilh'nois,  the  same  effect  they  would  have  received  in  the  courts  of 
that  state. 

By  the  statutes  of  Illinois,  any  creditor  can  sue  out  a  writ  of  attach- 
ment against  a  nonresident  debtor,  under  which  the  officer  is  required 
to  seize  and  take  possession  of  the  debtor's  property,  and  if  the  debtor 
cannot  be  served  with  process,  he  is  notified  by  publication,  and  if  he 
does  not  appear,  the  creditor,  on  making  proper  proof,  is  entitled  to 
a  judgment  by  default  for  his  claim,  and  a  special  execution  is  issued 
to  sell  the  property  attached.  The  judgment  is  not  a  lien  upon  any 
other  property  than  that  attached;  nor  can  any  other  be  taken  in  exe- 
cution to  satisfy  it.  These  statutes  further  provide,  that  mortgages 
on  personal  property  have  no  validity  against  the  rights  and  interests 
of  third  persons,  without  being  acknowledged  and  recorded,  unless 
the  property  be  delivered  to  and  remain  with  the  mortgagee. 

And  so  strict  have  the  courts  of  Illinois  been  in  construing  the  stat- 
ute concerning  chattel  mortgages,  that  they  have  held,  if  the  mortgage 
cannot  be  acknowledged  in  the  manner  required  by  the  act,  there  is 
no  way  of  making  it  effective,  except  to  deliver  the  property,  and  that 
even  actual  notice  of  the  mortgage  to  the  creditor,  if  it  is  not  properly 
recorded,  will  not  prevent  him  from  attaching  and  holding  the  prop- 
erty.   Henderson  v.  Morgan,  26  111.  431;  Porter  v.  Dement,  35  111.  479. 

The  polic}'-  of  the  law  in  Illinois  will  not  permit  the  owner  of  person- 
al property  to  sell  it  and  still  continue  in  possession  of  it.  If  between 
the  parties,  without  delivery,  the  sale  is  valid,  it  has  no  effect  on  third 
persons  who,  in  good  faith,  get  a  lien  on  it;  for  an  attaching  creditor 
stands  in  the  light  of  a  purchaser,  and  as  such  will  be  protected. 
Thornton  v.  Davenport,  1  Scam.  (111.)  296,  29  Am.  Dec.  358;  Jones' 
Estate  V.  Jones,  16  111.  117.  But  it  is  unnecessary  to  cite  any  other 
judicial  decisions  of  that  state  but  the  cases  of  Martin  v.  Dryden,  1 
Oilman  (111.)  187,  and  Burnell  v.  Robertson,  5  Oilman  (111.)  282,  which 
are  admitted  in  the  record  to  be  a  true  exposition  of  the  laws  of  Illi- 
nois on  the  subject,  to  establish  that  there  the  safes  were  subject  to 
the  process  ol  attachment,  and  that  the  proceedings  in  attachment  took 
precedence  of  the  prior  unrecorded  mortgage  from  Bates. 

If  Oreen,  at  the  date  of  the  levy  of  his  attachment,  did  not  know  of 
this  mortgage,  and  subsequently  perfected  his  attachment  by  judgment, 
execution,  and  sale,  the  attachment  held  the  property,  although  at 
the  date  of  the  levy  of  the  execution  he  did  know  of  it.  The  lien 
he  acquired,  as  a  bona  fide  creditor,  when  he  levied  his  attachment 
without  notice  of  the  mortgage,  he  had  the  right  to  perfect  and  se- 
cure to  himself,  notwithstanding  the  fact  that  the  mortgage  existed. 


298 


PARTICULAR  SUBJECTS. 


(Part  2 


was  known  to  him,  before  the  judicial  proceedings  were  complete^!. 
This  doctrine  has  received  the  sanction  of  the  hi^-hest  court  in  IIH- 
nois  through  a  long  series  of  decisions,  and  may  well  be  considered 
the  settled  policy  of  the  state  on  the  subject  of  the  transfer  of  personal 
property.  If  so,  the  effect  which  the  courts  there  would  give  to  these 
proceedings  in  attachment,  is  too  plain  for  controversy.  It  is  clear, 
if  VanBuskirkhad  selected  Illinois,  instead  of  New  York,  to  test 
the  liaoility  oL-theae  saie^__LQ  seizure  and  cundemnation,  on  the  same 
evidence  and  pleadingSj^  their  seizure  and  condemiiafiori  would  have 
been  justifiedT 

'"Ttis^ue,  the  court  in  Illinois  did  not  undertake  to  settle  in  the  at- 
tachment suit  the  title  to  the  property,  for  that  question  was  not  involv- 
ed in  it,  but  when  the-trtte  state  oi^llLe_property  was  shown  by  other 
evidence,  as  was_dong_jjiJhis_siiit,_then_it_was  obvious~that  by  theTaws 
of  Illinois  it  could, be^je'^ed  in,Mtaclim£nIIas^Bates^pi^opefty^ 
/^  In  order  to  give  due  force  and  effect  to  a  judicial  proceeding,  it  is 
J   often  necessary  to  show  by  evidence,  outside  of  the  record,  the  predic- 

/    ament  of  the  property  on  which  it  operated.     This  was  done  in  this 
]  case,  and  determined  the  effect  the  attachment  proceedings  in  Illinois 

I  produced  on  the  safes,  which  effect  was  denied  to  them  by  the  Su- 

/    preme  Court  of  New  York. 

^ — hX.  an  early  day  in  the  history  of  this  court,  the  act  of  Congress 
of  1790,  which  was  passed  in  execution  of  an  express  power  conferred 
by  the  Constitution,  received  an  interpretation  which  has  never  been 
departed  from  (Mills  v.  Duryee,  7  Cranch,  481,  3  L,.  Ed.  411),  and 
obtained  its  latest  exposition  in  the  case  of  Christmas  v.  Russell,  5 
Wall.  290,  18  L.  Ed.  475. 

The  act  declares  that  the  record  of  a  judgment  (authenticated  in  a 
particular  manner),  shall  have  the  same  faith  and  credit  as  it  has  in 
the  state  court  from  whence  it  is  taken.  And  this  court  say :  "Con- 
gress have  therefore  declared  the  effect  of  the  record,  by  declaring 
what  faith  and  credit  shall  be  given  to  it;"  and  that  "it  is  only  neces- 
sary to  inquire  in  every  case  what  is  the  effect  of  a  judgment  in  the 
state  where  it  is  rendered." 

It  should  be  borne  in  mind  in  the  discussion  of  this  case,  that  the 
record  in  the  attachment  suit  was  not  used  as  the  foundation  of  an 
action,  but  for  purposes  of  defence.  Of  course  Green  could  not  sue 
Bates  on  it,  because  the  court  had  no  jurisdiction  of  his  person;  nor 
could  it  operate  on  any  other  property  belonging  to  Bates  than  that 
which  was  attached.  But,  as  by  the  law  of  Illinois,  Bates  was  the 
owner  of  the  iron  safes  when  the  writ  of  attachment  was  levied,  and 
as  Green  (vmffPnnrrdiH  lawfnnAQv1tach_11iem  to  satisfy  his_debt  in_ji 
court  which  had  junsdlcrionjo  render  the  iudgmonf,  anri  ;i^_^<^lTPQaJp<; 
were  1nwfii11^__^^n1dTo^c;nti'^Ty  thnt,_jxidgment^__it_  follo\v^_iliat  wheij 
thus  sold  the_nghtlQil4iro2eiljLiiiJ^  changed,  andthe_title  to_ 

them  became  vested  in  the  purchasergjit  tHe^^^TH^  And  as  the  effect  of 
the  levy,  judgnient  and  sale  iTto  protect  Green  if  sued  in  the  courts 


Ch.    1)  PROPERTY.  299 

of  Illinois,  and  these  proceedings  are  produced  for  his  own  justifica- 
tion, it  ought  to  require  no  argument  to  show  that  when  sued  in  the 
court  of  another  state  for  the  same  transaction,  and  he  justifies  in  the 
same  manner,  that  he  is  also  protected.  Any  other  rule  would  destroy 
all  safety  in  derivative  titles,  and  deny  to  a  state  the  power  to  regulate 
the  transfer  of  personal  property  within  its  limits  and  to  subject  such 
property  to  legal  proceedings. 

Attachment  laws,  to  use  the  words  of  Chancellor  Kent,  "are  legal 
modes  of  acquiring  title  to  property  by  operation  of  law."  They 
exist  in  every  state  for  the  furtherance  of  justice,  with  more  or  less 
of  liberality  to  creditors.  And  if  the  title  acquired  under  the  attach- 
ment laws  of  a  state,  and  which  is  valid  there,  is  not  to  be  held  valid 
in  every  other  state,  it  were  better  that  those  laws  were  abolished,  for 
they  would  prove  to  be  but  a  snare  and  a  delusion  to  the  creditor. 

The  Vice  Chancellor  of  New  York,  in  Cochran  v.  Fitch,  1  Sandf.. 
Ch.  (N.  Y.)  146,  when  discussing  the  effect  of  certain  attachment  pro- 
ceedings in  the  state  of  Connecticut,  says :  "As  there  was  no  fraud 
shown,  and  the  court  in  Connecticut  had  undoubted  jurisdiction  in 
rem  against  the  complainant,  it  follows  that  I  am  bound  in  this  stacc 
to  give  to  the  proceedings  of  that  court  the  same  faith  and  credit  they 
would  have  in  Connecticut."  As  some  of  the  judges  of  New  York- 
had  spoken  of  these  proceedings  in  another  state,  without  service  of 
process  or  appearance,  as  being  nullities  in  that  state  and  void,  the 
same  Vice  Chancellor  says :  "But  these  expressions  are  all  to  be  re- 
ferred to  the  cases  then  under  consideration,  and  it  will  be  found  that 
all  those  were  suits  brought  upon  the  foreign  judgment  as  a  debt,! 
to  enforce  it  against  the  person  of  the  debtor,  in  which  it  was  attempt- j 
ed  to  set  up  the  judgment  as  one  binding  on  the  person." 

The  distinction  between  the  effect  of  proceedings  by  foreign  at- 
tachments, when  olTered_in_evidence  as  the  ground  of  recoveryagainst 
the  persoir'''6f_jh£I3£Si9>iv-aflZlthejF^effg^^  in  dijeECg.  to 

justify  the  conduct  of  tlie_attaching  creditor,  is  manifest  and  supported 
by  authority.  Cochran^vTFitchTT^Sandfreh:  ( N .  T7fTi6 ;  Kane  T. 
Cook,  8  Cal.  449.  Chief  Justice  Parker,  in  Hall  v.  Williams,  6  Pick. 
(Mass.)  232,  17  Am,  Dec.  356,  speaking  of  the  force  and  eft'ect  of 
judgments  recovered  in  other  states,  says:  "Such  a  judgment  is  to 
conclude  as  to  everything  over  which  the  court  which  rendered  it  had 
jurisdiction.  If  the  property  of  the  citizen  of  another  state,  within  its 
lawful  jurisdiction,  is  condemned  by  lawful  process  there,  the  decree 
is  final  and  conclusive." 

It  would  seem  to  be  unnecessary  to  continue  this  investigation  fur- 
ther, but  our  great  respect  for  the  learned  court  that  pronounced  the 
judgment  in  this  case,  induces  us  to  notice  the  ground  on  which  they 
rested  their  decision.  It  is,  that  the  law  of  the  state  of  New  York  is  to 
govern  this  transaction,  and  not  the  law  of  the  state  of  Illinois  where 
the  property  was  situated;  and  as,  by  the  law  of  New  York,  Bates 
had  no  property  in  the  safes  at  the  date  of  the  levy  of  the  writ  of 


300 


PARTICULAR  SUBJECTS. 


(Part  2 


attachment,  therefore  none  could  be  acquired  by  the  attachment.  Xii£ 
theory  of  the  case  is.  that  the  voluntary  transfer  of  personal  property 
is  to  be  gQY£med-£^ry  where  bytHe~Taw  of  the  owner's  dornigilg^and 
this  theory  proceeds  on "the^BctJoiT'of'faw^Tat  th^  domicile  of^the 
ownerdraws^to-it-ttie'^personal  estate~WlTrch--he^owns  wherever,  it  may 
happen  to  be  located.     But  this  fictidti'ls  by  no  means  of  universal 


application,  and.  as^Jtidge  Story  says,  "yields  whenever  it  is  necessary 
for  the  purposes  of  justice  that  the  actual  situs  of  the  thing  should  be 
examined."  It  has  yielded  in  New  York  on  the  power  of  the  state  to 
tax  the  personal  property  of  one  of  her  citizens,  situated  in  a  sister 
state  (People  v.  Commissioner  of  Taxes,  23  N.  Y.  225)  and  always 
yields  to  "laws  for  attaching  the  estate  of  nonresidents,  because  such 
laws  necessarily  assume  that  property  has  a  situs  entirely  distinct  from 
the  owner's  domicile."  If  New  York  cannot  compel  the  personal  prop- 
erty of  Bates  (one  of  her  citizens)  in  Chicago  to  contribute  to  the  ex- 
penses of  her  government,  and  if  Bates  had  the  legal  right  to  own 
such  property  there,  and  was  protected  in  its  ownership  by  the  laws 
of  the  state;  and  as  the  power  to  protect  implies  the  right  to  regulate, 
it  would  seem  to  follow  that  the  dominion  of  Illinois  over  the  prop- 
erty was  complete,  and  her  right  perfect  to  regulate  its  transfer  and  sub- 
i^ect  it  to  process  and  execution  in  her  own  way  and  by  her  own  laws. 

We  do  not  propose  to  discuss  the  question  how  far  the  transfer 
of  personal  property  lawful  in  the  owner's  domicile  will  be  respected 
in  the  courts  of  the  country  where  the  property  is  located  and  a  differ- 
ent rule  of  transfer  prevails.  It  is  a  vexed  question,  on  which  learned 
courts  have  differed;  but  after  all  th£re^isjia--a.bsolute--right  to  have 
such  transfer  respected,  and  it  is  only  on-^-priocipIe  of  conmythat  iF 
is  ever  aITowe4.  And  this  principle  of  comity  always  yields^when 
the  laws  and  policy  of  the  state  where  the  property  is  located  has  pre- 
scribed a  different  rule  of  transfer  with  that  of  the  state  where  the 
owner  lives. 

We  have  been  referred  to  the  case  of  Guillander  v.  Howell,  35  N.  Y. 
657,  recently  decided  by  the  Court  of  Appeals  of  New  York,  and  as 
we  understand  the  decision  in  that  case,  it  harmonizes  with  the  views 
presented  in  this  opinion.  A  citizen  of  New  York  owning  personal 
property  in  New  Jersey  made  an  assignment,  with  preferences  to 
creditors,  which  was  valid  in  New  York  but  void  in  New  Jersey.  Cer- 
tain creditors  in  New  Jersey  seized  the  property  there  under  her  for- 
eign attachment  laws  and  sold  it,  and  the  Court  of  Appeals  recog- 
nized the  validity  of  the  attachment  proceeding,  and  disregarded 
the  sale  in  New  York.  That  case  and  the  one  at  bar  are  alike  in  all 
respects  except  that  the  attaching  creditor  there  w'as  a  citizen  of  the 
state  in  which  he  applied  for  the  benefit  of  the  attachment  laws, 
while  Green,  the  plaintiff  in  error,  was  a  citizen  of  New  York;  and 
it  is  insisted  that  this  point  of  difference  is  a  material  element 
to  be  considered  by  the  court  in  determining  this  controversy, 
for  the  reason  that  the  parties  to  this  suit,  as  citizens  of  New  York, 


Ch.    1)  PROPERTY.  '301 

I  were  bound  by  its  laws.  But  the  right  under  the  Constitution  of  the 
\United  States  and  the  law  of  Congress  which  Green  invoked  to  his 
aid  is  not  at  all  affected  by  the  question  of  citizenship.  We  cannot  sec 
why,  if  Illinois,  in  the  spirit  of  enlightened  legislation,  concedes  to  the 
citizens  of  other  states  equal  privileges  with  her  own  in  her  foreign 
attachment  laws,  that  the  judgment  against  the  personal  estate  locat- 
ed in  her  limits  of  a  nonresident  debtor,  which  a  citizen  of  New  York 
lawfully  obtained  there,  should  have  a  different  effect  given  to  it  under 
the  provisions  of  the  Constitution  and  the  law  of  Congress,  because 
the  debtor,  against  whose  property  it  was  recovered,  happened  also 
to  be  a  citizen  of  New  York. 

The  judgment  of  the  Supreme  Court  of  the  state  of  New  York  is 
reversed,  and  the  cause  remitted  to  that  court  with  instructions  to 
enter  judgment  for  the  plaintiff  in  error. 


SHAPARD  V.  HYNES. 

(Circuit  Court  of  Appeals,  Eiglith  Circuit,  1900.    104  Fed.  449,  45  C.  C.  A.  271,    ^_  ^         .     .    -^-. 

52  L.  R.  A.  675.)  Vc^^^^^'***^  ^^ 

In  error  to  the  United  States  Court  of  Appeals  in  the  Indian  Terri-    -Aru-*^^*^-'*' 

This  was  a  suit  for  the  wrongful  seizure  and  conversion  under  a  ^  lj-^^^-^ 
writ  of  attachment  of  a  marble  soda  fountain  and  the  general  outfit  qJXm*^*^  ^' '**" 
of  a  confectionery  establishment  which  had  been  moved  from  Texas  ^^    Mt^r^ 

to  the  Indian  Territory  about  18  months  before  the  seizure.    The  writ     t^**^ 
of  attachment  was  levied  at  the  instance  of  the  defendants,  the  Shap-  /y^  a    IslmM^ 
ard   Grocery    Company,   a   copartnership,   to   which   J.    E.    Cottraux,  ^ 

against  whom  the  writ  was  directed,  was  indebted.     Plaintiffs  claimed  X^i/JU  iK    iH  -«-*^» 
title  to  the  chattels  under  a  bill  of  sale  executed  by  Cottraux's  par- 
ents in  Texas,  where  it  was  recorded.    J.  E.  Cottraux  claimed  to  have'^TT      j^  Cm.~T\ 
the  chattels  in  his  possession  as  lessee  of  the  plaintiffs.    The  Shapard    ^' 
Grocery  Company  contended  that  the  bill  of  sale  was  in   reality  a  ^  cj^  ^^ivtiuoo^^t^ 
mortgage,   and   that   plaintiffs,   if   mortgagees,   could   not   follow   the 
property  into  the  Indian  Territory.     The  trial  resuUed  in  a  judgment  J  f\/t^^^d^v>^  '^^'*^ 


for  plaintiffs  which  was  affirmed  by  the  Court  of  Appeals  in  the  Indian 


vn  W.  ^  ^' 


Territory.^** 

Thayer,  Circuit  Judge.^^     *     *     *     There  has  been  much  discus-   ^^ 

sion  concerning  the  eft'ect  of  the  removal  of  mortgaged  goods  and  . 

chattels  from  the  state  where  the  mortgage  was  made  and  recorded,   t^Uo  Lrt^  tf«-u- 


to  another  state.    The  general  consensus  of  judicial  opinion  seems  to     . 
be  that  when  personal  property,  which  at  the  time  is  situated  in  a    j"^ 
given  state,  is  there  mortgaged  by  the  owner,  and  the  mortgage  is    c;^    /^ 


16  The  statement  of  facts  tias  been  abridged. 
17 A  part  of  the  opinion  has  been  omitted, 


/w-  V    *..    M    . §  .-r^  P . *. .       'd       *-A      /I/        ".. 


302 


PARTICULAR  SUBJECTS. 


(Part  2 


duly  executed  and  recorded  in  the  mode  required  by  the  local  law,  so 
as  to  create  a  valid  lien,  the  lien  remains  good  and  effectual,  although 
the  property  is  removed  to  another  state,  either  with  or  without  the 
consent  of  the  mortgagee,  and  although  the  mortgage  is  not  re-record- 
ed in  the  state  to  which  the  removal  is  made.  The  mortgage  lien  is 
given  effect.JioweYeJV4ft-thg-~StateJ:o  which  the  property  is  removed. . 
solelyby_yirtue  of  the  doctrine  of  comity.  Hence  a  state  may  b>'  ap- 
propriate legislatioii  dectinOoIoBserve  the  rule  of  coniity,  and,  mny-rp- 
quire  all  mdStgngag.  nffecfing  pprsQnjJ^Trn^prhyjwhi^-h  ic;  ^iJ-nal-^H  \}-\pre- 
in  or  brought^  thexein  to  be  there^  recorded,  as  a  condition  precedent  to 
the  recogiiirion  oLtheirj^^Jidity  in  tliat  state.  BlTtTfie  statuses  ofastate 
which  pr^s^nbe  how  mortgages^on  pCTSonal  property  shall  be  executed 
and  recorded  are  generally,  if  not  universally,  regarded  as  speaking 
with  respect  to  mortgages  made  within  the  state  upon  property  there 
situated,  and  as  having  no  reference  to  personalty  brought  within  the 
state  which  is  at  the  time  incumbered  with  a  valid  lien  created  else- 
where. These  propositions  are  fully  sustained  by  the  following  au- 
thorities :  Hornthal  v.  Burwell,  109  N.  C.  10,  13  S.  E.  721,  13  L.  R. 
A.  740,  26  Am.  St.  Rep.  556 ;  Smith  v.  -McLean,  2-1  Iowa,  322,  32S, 
329;   Handley  v.  Harris,  48  Kan.  606,  29  Pac.  1145,  17  L.  R.  A.  703. 

30  Am.  St.  Rep.  322 ;  Bank  of  Commerce  v.  Morris,  114  Mo.  255.  21  S. 
W.  511,  19  L.  R.  A.  463 ;  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70  Am. 
Dec.  62;  Langworthy  v.  Little,  12  Cush.  (Mass.)  109;  Whitney  v. 
Heywood,  6  Cush.  (Mass.)  82;  Ames  Iron  Works  v.  Warren,  76 
Ind.  512,  40  .\m.  Rep.  258 ;  Feurt  v.  Rowell,  62  Mo.  524,  526 ;  Cool 
V.  Roche,  20  Neb.  550,  556,  31  N.  W.  367;  Keenan  v.  Stimson,  32 
Minn.  377,  20  N.  W.  364;  Oft'utt  v.  Flagg,  10  N.  H.  46;  Lathe  v. 
Schoff,  60  N.  H.  34;  Barrows  v.  Turner,  50  Me.  127;   Hall  v.  Pillow, 

31  Ark.  32 ;  Mumford  v.  Canty,  50  111.  370,  99  Am.  Dec.  525 :  Bal- 
lard v.  Winter,  12  Am.  Law  Reg.  (N.  S.)  759;  Jones,  Chat.  Mortg. . 
(4th  Ed.)  §  260.  Sofar_as_our_research_has  extended,  Michigan  is  the 
only  state  which^dgcliiies^  to  recognize ^the^^V3lidity_oi_a.  mortgage  Tien 
upon  peFsorialTpropertylproug^  that  Avaa-...£reated 
elsewhere,  and  vyhich  i2Iiuntainsdie_siipe£iority_jxL-an  attachment  lien 
acquired  m  asuit  commencedjnjhat  state  against  thp  mnrtgagor,  uJin 
has  jth^j;pfepci:ty,Un_jii£_.possession.  Corbett  v.  Littlefield,  84  Mich. 
30,  47  N.  W.  581,  11  L.  R.  A.  95,  22  Am.  St!  Rep.  681 ;  Boydson  v. 
Goodrich,  49  Mich.  G6,  12  N.  W.  913. ^^  The  decision  in  Green  v. 
Van  Buskirk,  7  Wall.  139,  150,  19  L.  Ed.  109,  is  not  in  conflict  with 
the  doctrines  stated  above,  since  the  mortgaged  property  that  was 
involved  in  that  case  was  located  in  Illinois  at  the  date  of  the  mort- 
gage, which  was  executed  in  New  York,  and  the  court  was  unable 
to  give  to  the  legal  fiction  that  the  domicile  of  the  owner  draws  to  it 
all  of  his  personal  property  such  force  and  effect  as  to  remove  the 


18  See,  also,  Snyder  v.  Yates,  112  Temi.  309,  79  S.  W.  790,  04  L.  R.  A.  35^., 
105  Adi.  St.  Hop.  941  (1904). 


Ch.  1) 


PROPERTY. 


303 


property  in  controversy  from  the  operation  of  the  laws  of  the  state 
of  IlHnois,  and  subject  it  to  the  operation  of  the  laws  of  New  York. 
Sections  4742  and  4743  of  Mansfield's  Digest  of  the  Laws  of  Arkan- 
sas (sections  3053,  3054,  Ind.  T.  Ann.  St.  1899),  relative  to  the  exe- 
cution and  recording  of  mortgages,  which  were  in  force  in  the  In- 
dian Territory  until  modified,  as  to  the  place  where  mortgages  of  per- 
sonal property  shall  be  recorded,  by  the  act  of  congress  approved 
February  3,  1897  (29  Stat.  510,  c.  136),  have  reference  only  to  mort- 
gages made  in  that  territory  upon  property  there  located  (Bank  of 
United  States  v.  Lee,  13  Pet.  107,  120,  10  L.  Ed.  81);  and,  within 
the  doctrine  above  stated,  they  cannot  be  given  effect  to  destroy  the 
lien  of  the  instrument  under  which  the  plaintiffs  claim  title  to  the 
property  in  controversy,  that  was  executed  and  recorded  in  Texas, 
where  the  property  was  at  the  time  located,  and  where  both  the  mort- 
gagors and  the  mortgagees  at  that  time  resided.  Even  if  that  instru- 
ment was  intended  as  a  mortgage,  and  not  as  an  absolute  billbt  sale, 
the  liefnlTereby  created~tDil<jvved  ttre~property  into  the  Indian  Terri- 
tory,  and  was  rightly  given  effect  by  comity,  and  should  have  bjgen 
given  pfferFeyen  it  fFJeattachinp^  creditors  did  not  have  actual  notice 
of  the  existence  and  record  of  thejnstrumenLat-the  date_of_the^levy, 
since  no  effOtT^wa^jriHe'ln^tE^ 
for  fraud^_o£jto_^uestioirjHe^^o^^ 


EDGERLY  v.  BUSH. 

(Court  of  Appeals  of  New  York,  ISSO.     81  N.  Y.  19D.) 


T7  A, 


Appeal  from  order  of  General  Term  of  the  Supreme  Court,  in  the 
Third  Judicial  Department,  reversing  a  judgment  in  favor  of  plaintiff', 
entered  upon  the  report  of  a  referee.      ('Reported  below,  16  Hun,  80.)  *» 

This  action  was  brought  for  the  alleged  conversion  of  a  span  of  --^  ^  /KaaXJ*"*^ 
horses. 

The  facts,  as  found  by  the  referee,  are  as  follows: 

One  Stephen  Baker  was  born  in  Lower  Canada  and  resided  there 
till  1873.     In  that  year  he  went  to  Moriah,  in  New  York,  engaged  there  . 

in  business  and  resided  there.     While  a  resident  of  Moriah  he  executed  Q^o-^^f*^^*^    K^ 
to  the  plaintiff,  a  resident  also  of  Moriah,  on  the  9th  day  of  March, 
1875,  a  chattel  mortgage  on  property  including  the  span  of  horses  in  C^^  ^'1)'^' 
question.     This  mortgage  was  duly  filed  March  10,  1875.     The  sum 
was  payable  in  monthly  mstallments,  the  first  payment  to  be  made 
June  1,  1875.     The  mortgage  contained  a  clause  that  in  case  of  non-       2^  W^^^v^^*^^^ 
payment,  or  in  case  the  mortgagor  or  any  other  person  should  remove,  '  , 

i9As   to   effect    of   consent    of    mortgagee   to    the    removal,    see   Jones    v.  o  j 

North  Pac.  Fish  &  Oil  Co.,  42  Wash.  332,  84  Pac.  1122,  6  L.  R.  A.  (N.  S.)  940,  LXM*-*-^-*-'^ 
114  Am.  St.  Rep.  131  (191X1..      ^^J[^    ^    J^^ 


J. 


y^^^tlA^ 


(X/tx<^ 


304 


PARTICULAR  SUBJECTS. 


(Part  2 


secrete  or  dispose  of  the  property,  or  if  the  mortgagee  deemed  it  neces- 
sary, he  might  take  possession,  otherwise  the  property  was  to  remain 
in  the  mortgagor's  possession  until  the  time  for  the  first  payment.  No 
part  of  the  sum  secured  has  ever  been  paid.  On  the  10th  of  May, 
1875,  Baker  returned  to  Lower  Canada,  taking  the  property  with  him, 
and  there  he  has  resided  ever  since.  In  November,  1875,  at  St.  Jean 
Chrysostom,  in  Lower  Canada,  one  Francis  De  Lisle,  of  that  place,  a 
regular  trader,  dealing  in  horses,  sold  the  horses  in  question  to  one 
Bromley,  a  resident  of  Plattsburgh  in  this  state.  Bromley  made  the 
purchase  in  good  faith  and  in  ignorance  of  the  plaintiff's  claim.  The 
horses  were  in  De  Lisle's  possession  at  the  time  and  were  at  once  de-' 
livered  to  Bromley  and  immediately  brought  by  him  to  Plattsburgh. 
It  does  not  appear  how  the  horses  came  into  the  possession  of  De 
Lisle.  On  the  10th  of  December,  1875,  Bromley  learned  that  the 
plaintiff  claimed  to  have  a  mortgage  on  the  horses.  To  prevent  their 
seizure,  by  the  plaintiff,  he  immediately  removed  them  to  Canada  for 
the  purpose  of  trading  back  with  De  Lisle.  On  the  13th  of  December, 
1875,  in  Canada,  Bromley  sold  the  horses  to  the  defendant.  At  that 
time  the  defendant  was  a  resident  of  this  state.  The  horses  in  ques- 
tion remained  in  Canada,  and  since  then  they  had  not  been  brought 
into  this  state  up  to  the  time  when  this  action  was  commenced.  The 
defendant  was  informed  by  Bromley  that  he  had  run  the  horses  into 
Canada  to  avoid  a  claim  or  seizure  under  a  mortgage.  Plaintiff  made 
a  demand  for  the  horses  but  defendant  refused  to  deliver.  Plaintiff 
did  not  reimburse,  or  offer  to  reimburse  to  defendant,  the  amount  paid 
by  him.  or  by  Bromley  for  the  horses.  Under  tji^la^s  of  Lower  Cana- 
da,  if  an  article  of  personal  property,  lost  or  stolen,  besold  in  aTTair 
or  marketT-pr  aT"'ar-pttfefe::::sglg^3?r'piIrnia5gd^  deal irig^in 

similar  articles,  tlTeowner-C.amipt  reclainijt_withQiit  reimbjjrsing^to 
the  purchaser  theDiiG£_4iaid-.^y_him. 

FoLGER,  C.  y.  ^his  is  an  actloiTfor  the  conversion  of  chattels.  It 
is  clear  that  if  the  plaintiff  had  the  title  to  them,  or  the  right  to  take 
immediate  possession  of  them,  the  defendant  exerted  such  dominion 
over  them  as  was  in  law  a  conversion  of  them.  It  is  also  clear  that 
the  plaintiff  had  the  title  to  the  property  by  the  laws  of  this  state,  and 
the  right  to  the  immediate  possession  of  it. 

The  defendant  must  make  his  defense,  if  he  may  at  all,  upon  a  title 
got  by  Bromley  from  De  Lisle,  to  which  he  has  succeeded.  De  Lisle 
was  a  resident  of  Canada,  and  a  trader  dealing  in  articles  like  the 
property  in  contest,  and  had  actual  possession  of  this  property  there 
as  the  proprietor  of  it.  Bromley  bought  it  of  him  in  good  faith,  gave 
value  for  it,  and  had  not  actual  notice  of  the  plaintiff's  right  to  it. 
The  plaintiff  has  never  reimbursed  to  Bromley  or  to  the  defendant  the 
price  paid  for  it  by  Bromley,  nor  has  he  offered  so  to  do. 

We  think  that  these  fa£ia-mak€-a-title_in  Broialey— thaLjLhe  law_o£_ 
Lower  Caflacla^would^jiphold-ia— that  j urisdicjiop.     We  deem  it  un- 
necessary to  go  into  the  detail  of  the  interpretation.     The  question  re- 


Ch.    1)  PROPERTY.  305 

maining  is,  which  law  is  to  prevail  in  deterniining_jhis_contest — that 
of  LowerXanada.  or  tHa£artliis'~st'atef    ^"" 

We  take  note  that  the  plaintiff,  and  Baker  from  whom  the  plaintiff 
got  title,  were  residents  of  this  state  when  the  transfer  was  made  be- 
tween them;  that  it  was  a  transfer  of  property  which  was  then  here, 
whence  it  was  taken  without  the  consent  of  the  plaintiff;  that  the 
transfer  was  made  by  mutual  consent,  and  was  executed  and  valid  here  ; 
that  the  consideration  for  the  transfer  existed  and  passed  here;  that 
the  plaintiff  and  defendant  were  and  are  residents  of  this  state ;  and  that 
the  forum  in  which  they  stand  is  here.  Thus  the  law  of  the  domicile, 
and  th^  law  of  the  then  situs  of  the  property,  and  the  law  of  the  forum 
in  which  the  remedy  is  sought,  all  concur  to  sustain  the  right  of  the 
plaintiff.  The  law  ofthe_domicile__of_the  owner_ofj>ersonal  property, 
as  a  general  rule,  determines  the  \a\idity_oi__^iL£x^r  transfer  made_Ql.it 
by  him.  ByTfiafTaw,  as  it  exists  in  this  case,  the  plaintiff  became  the 
dWner~oT  this  property  before  it  was  taken  beyond  its  operation.  By 
that  law  too,  an  owner  of  property  may  not  be  divested  of  it  witlx)ut 
his  consent,  or  by  due  process  of  law ;  plainly  not  by  a  dealing  with 
it  by  others  without  his  knowledge,  assent,  or  procurement.  Still, 
another  state  may  make  provision  by  statute  in  respect  to  personal 
property  actually  within  its  jurisdiction.  Though  a  transfer  of  per- 
sonal property,  valid  by  the  law  of  the  domicile,  is  valid  everywhere." 
as  a  general  pr^gple, 'there_is  to  be  eT;r"pt^rl  thnt  t'^rnt^^^^  '^-^  w'^^'^'^h_^^ 
is  situated  and  where  a  different  law  has_been__set  up,  when  it  is  necesr 
sary  for  the  purposeofjiistice  that  the  actual  situs  of  the  thing  be  ex- 
amined.  T^i^eeTTVTl^atiBuskirk,  7  Wall  (U.  S.)  139,  19  L.  Ed.  109. 
YeTTHe*" statutes  of  that  land  have  no  extra-territorial  force  proprio 
vigore,  though  often  permitted  by  comity  to  operate  in  another  state 
for  the  promotion  of  justice,  where  neither  the  state  nor  its  citizens 
will  suffer  any  inconvenience  from  the  application  of  them.  The  ex- 
ercise of  comity  in  admitting  or  restraining  the  application  of  the 
laws  of  another  country  must  rest  in  sound  judicial  discretion,  dictated 
by  the  circumstances  of  the  case.  Per  Parker,  C.  J.,  Blanchard  v. 
Russell,  13  Mass.  6,  7  Am.  Dec.  106.  It  is  ^lain  that  on  no  principle 
applicable  to  this  case  could  the^_sak^f_ihe___plaintiff's  property  by 
another  having  no  authority  from  Jiim^to  his^wrong  indeed,  be  upheld, 
save  that  it  was  authorizedjiy  the-sta^tvfee-of  IvOwer  Canada__Sa_lli2Lt 
the  question  is  one  ^jntirely  of  thp-xomity:  to  be  shown  bv  the  courts 
of  this  statejtgjhe  enactments  of  another  country.  •  Those  statutes  not 
only  enact  the  rule  of  market-overt  as  it  prevails  in  general  in  England, 
but  carry  it  further,  and  make,  as  in  the  city  of  London,  every  sale  by 
a  trader  dealing  in  like  articles  as  good  as  a  sale  at  market-overt. 

That  rule  does  not  nbtnin  in  this  gtatp_TMia';  not  been  our  policy 
to  establish  it.  Our  policy  has  been.  and~is,  to  protect  thTTight  ^f 
ownership^_and_to  leave  the  buyej^  to  take  rr^re  thatch p  o-etc;  a  gnod 
title.  It  would  be  to  the  contxavgjjtion^of  that  policy,  a.ndAQj.he  in- 
convenience  of  our  citizens^fjwejhouldj^ive_£ffect_tQjhes^^ 
LoR.CoxF.t.— 20  ^ 


p.  i^^ 


306  PARTICULAR  SUBJECTS.  (Part  3 

Lower  Canada,  to  the  divesting  of  titles  to  movables  lawfully  acquired 
and  held  by  our  general  and  statute  law,  without  the  assent  or  inter- 
vention, and  against  the  will  of  the  owner  by  our  law.  ]MQtions„.Qf 
property  are  slight,  when  a  bona  fide  purchase  of  stolen  goods  gives 
a  good  title'agamsrthc-crrTg'mal  owner:  PeTTCent,  C.  J.,  Wheelwright 
V.  DepeysteF,  1  Johnsr4T0,  3  Am.  Dec.  345.  We  are  not  required  to 
show  comity  to  that  extent;  especially  as  it  is  to  our  citizens  alone 
that  we  are  a^mnTi5l£xrngi4U-stice! 

There^are^  judgments  to  the  end  that  the  law  of  the  situs  of  the 
movable  property  will  determine  who  is  entitled  to  it,  and  the  matter 
of  comity  is  not  taken  into  account.  A  notable  one  is  Cantmell  v. 
Sewell  (In  the  Exchequer  Chamber)  5  H.  &  N.  728.  But  there  the 
property  had  not  been  in  England  until  after  the  sale  in  Norway,  and 
had  never  been  in  the  possession  of  the  English  owners.  We  doubt 
whether,  in  a  case  like  this,  where,  after  a  title  to  property  has  been 
acquired  by  the  law  of  the  domicile  of  the  vendor,  and  of  the  situs 
of  the  thing,  and  of  the  forum  in  which  the  parties  stand  in  a  con- 
test between  citizens  of  the  state  of  that  forum,  it  has  ever  been 
adjudged  that  such  title  has  been  divested  by  the  surreptitious  removal 
of  the  thing  into  another  state,  and  a  sale  of  it  there  under  different 
laws.  There  are  decisions  that  it  has  not,  however.  See  Taylor  v. 
Boardman,  25  Vt.  581 ;  Martin  v.  Hill,  12  Barb.  631 ;  French  v.  Hall, 
9  N.  H.  137,  32  Am.  Dec.  341 ;  Langworthy  v.  Little,  12  Gush.  (Mass.) 
109.  It  is  sought  to  distinguish  these  cases  from  that  in  hand;  but 
they  went  upon  a  principle  that  is  not  inapplicable  here.  In  them,  as 
here,  a  right  to  movable  property  had  been  acquired  in  one  state  in 
a  mode  efficient  thereto  by  its  laws.  The  property  had  been  taken  into 
another  state  where  that  mode  was  not  sufficient  by  its  law  to  create  a 
right.  But  the  right  acquired  by  that  mode  was  upheld,  in  all  the 
cases  the  property  was  taken  away  from  under  the  laws  which  gave  the 
right,  and  placed  under  the  operation  of  laws  that  denied  the  rig|ht. 
We  perceive  no  difference  in  those  cases  from  this  that  we  have,  save 
that  in  those  a  creditor  was  seeking  to  recover  his  debt  out  of  the 
property,  in  invitum  the  right  thus  acquired.  Here  there  is  a  sale  of 
the  property  between  third  parties  despite  the  right.  In  those  it  was 
sought  to  take  away  the  right  by  a  public  judicial  sale.  In  this  it  is 
urged  that  the  right  has  been  destroyed  by  a  private  sale.  By  the 
laws  of  those  other  states  the  creditors  would  have  succeeded.  So 
here  the  third  parties  would  succeed  by  the  law  of  Lower  Canada. 
But  in  those  cases  the  law  of  the  state  where  the  right  was  acquired 
was  recognized,  and  force  given  to  it  in  another  state  and  under  differ- 
ent law.  Why  should  it  not  be  in  this  case? 
^  •  .  Such  cases  as  Grant  v.  McLachlin,  4  Johns.  (N.  Y.)  34,  and  The 
Xllf^jJ*'^^'^  Helena,  4  Rob.  Adm.  3,  do  not  conflict.  In  them  there  were  in  the 
^  i/s/*^*'^  foreign  country  legal  proceedings  in  rem,  or  analogous  thereto,  so  that 

^  the  question  was  of  respect  for  the  judicial  proceedings  of  another  coun- 

try.    The  case  of  Greenwood  v.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145, 


Ch.  1) 


PROPERTY. 


307 


recognized  the  principles  upon  which  our  judgment  proceeds,  but  held 
that  the  facts  did  not  call  for  the  application  of  them. 

The  order  of  the  General  Term  should  be  reversed,  and  judgment 
on 'report  of  the  referee  be  affirmed. 

Order  reversed  and  judgment  affirmed.-** 


HERVEY  V.  RHODE  ISLx\ND  LOCOMOTIVE  WORKS. 

(Supreme  Court  of  the  Uuited  States,  187G.    93  U.  S.  GG4,  23  L.  Ed.  1003.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Illinois. 

The  Rhode  Island  Locomotive  Works  sold  to  J.  Edwin  Conant 
&  Co.  a  locomotive,  title  to  remain  in  the  vendor  until  the  payment  of 
the  purchase  price.  The  agreement  of  sale  was  executed  by  the 
Rhode  Island  Locomotive  Works  at  its  place  of  business  in  Rhode 
Island  and  by  Conant  &  Co.  in  New  York,  where  they  resided.  The 
locomotive  was  delivered  to  Conant  &  Co.  to  be  used  by  them  in 
Illinois,  and  was  so  removed  to  and  used  by  them  in  that  state.  Be- 
fore the  agreement  was  recorded  the  locomotive  was  seized  as  the 
property  of  Conant  &  Co.  and  sold  to  Hervey.  The  Rhode  Island 
Locomotive  Works  sued  out  a  writ  of  replevin  in  the  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  Illinois.  Judgment  was 
given  for  the  plaintiff.^ ^ 

Davis^  J.  It  was  decided  by  this  court,  in  Green_v.  Van  Buskirk^^ 
Wall.  307,  18  L.  Ed.  599 ;  Id'.,  7  Wall.  139,  19  L.  Ed.  109,  that  the 
Hability  of  property  to  be  sold  under  legal  process,  issuing  from  the 
courts  of  the  state  where  it  is  situated,  must  be  determined  by  the  law 
there,  rather  than  that  of  the  jurisdiction  where  the  owner  lives. 
These  decisions  rest  on  the  ground  that  every  state  has  the  right  to 
regulate  the  transfer  of  property  within  its  limits,  and  that  wdioever 
sends  property  to  it  impliedly  submits  to  the  regulations  concerning  its 
transfer  in  force  there,  although  a  different  rule  of  transfer  prevails 
in  the  jurisdiction  where  he  resides.  He  has  no  absolute  right  to  have 
the  transfer  of  property,  lawful  in  that  jurisdiction,  respected  in  the 
courts  of  the  state  where  it  is  found,  and  it  is  only  on  a  principle  of 
comity  that  it  is  ever  allowed.  But  this  principle  yields  when  the 
laws  and  policy  of  the  latter  state  conflict  with  those  of  the  former. 

The  policy  of  the  law  |n  Illinois  will  not  permit  the  owner  of  pcj- 
sonal  property  to  sell  it,  either  absolutely^or  conditionally,  and  still  con- 


M^ 


2  0 As  to  chattel  mortgages  in  general  see  Marion  Griffin,  the  Effect  of  For- 
eign Chattel  Mortgages  upon  the  Rights  of  Subsequent  Purchasers  and  Crod- 
'•^'^Ts,  4  Mich.  Law  Rev.  35S-370 ;  also  70  Am.  Dee.  67-72;  04  L.  R.  A.  353- 
366. 

-1  This  statement,  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


308 


PARTICULAR  SUBJECTS. 


(Part  2 


tinue  in_gossession_  of  it.  Possession  is  one  of  the  strongest  evidences 
of  title  to  this  class  of  property,  and  cannot  be  rightfully  separated 
from  the  title,  except  in  the  manner  pointed  out  by  statute.  The 
courts  of  Illinois  say  that  to  suffer  without  notice  to  the  world  the 
real  ownership  to  be  in  one  person,  and  the  ostensible  ownership  in 
another,  gives  a  false  credit  to  the  latter,  and  in  this  way  works  an 
injury  to  third  persons.  Accordingly,  the  actual  owner  of  personal 
property  creating  an  interest  in  another,  to  whom  it  is  delivered,  if 
desirous  of  preserving  a  lien  on  it,  must  comply  with  the  provisions 
of  the  chattel  mortgage  act.  Rev.  St.  111.  1874,  pp.  711,  712,  c.  95. 
It  requires  that  the  instrument  of  conveyance,  if  it  have  the  effect  to 
preserve  a  mortgage  or  lien  on  the  property,  must  be  recorded,  whether 
the  party  to  it  be  a  resident  or  nonresident  of  the  state.  If  this  be 
not  done,  the  instrument,  so  far  as  third  persons  are  concerned,  has  no 
validity. 

Secret  liens__which  treat  the  vendor  of  personal  property,  who  has 
delivered'"possessionjTj^to_the]^^  LliF]owheF until  the  pay- 

ment  of  thejurcHase-moneyTcannot  be  maintained~in_Illinois.  They 
are  held  to  be  ronstr^ucdyglvjraudulent  as  to  creditors,  and. the  prop- 
erty, so  far  as  their  rights  are  concerned,  is  considered  as  belonging  to 
the  purchaser  hoIding_jthe_^ssession.  McCormick  v.  Hadden,  37  111. 
370;  Ketchum  v.  Watson,  24  111.  591.  Nor  is  the  transaction  changed 
by  the  agreement  assuming  the  form  of  a  lease.  In  determining  the 
real  character  of  a  contract,  courts  will  always  look  to  its  purpose, 
rather  than  to  the  name  given  to  it  by  the  parties.  If  that  purpose 
be  to  give  the  vendor  a  lien  on  the  property  until  payment  in  full  of' 
the  purchase  money,  it  is  liable  to  be  defeated  by  creditors  o^  the 
purchaser  who  is  in  possession  of  it.  This  was  held  in  Murch  v. 
Wright,  46  111.  488,  95  Am.  Dec.  455.  In  that  case  the  purchaser  took 
from  the  seller  a  piano  at  the  price  of  $700.  He  paid  $50  down,  which 
was  called  rent  for  the  first  month,  and  agreed  to  pay,  as  rent,  $50 
each  month  until  the  whole  amount  should  be  paid,  when  he  was  to 
own  the  piano.  The  court  held,  "that  it  was  a  mere  subterfuge  to  call 
this  transaction  a  lease,"  and  that  it  was  a  conditional  sale,  with  the 
right  of  rescission  on  the  part  of  the  vendor,  in  case  the  purchaser 
should  fail  in  payment  of  his  installments — a  contract  legal  and  valid 
as  between  the  parties,  but  subjecting  the  vendor  to  lose  his  lien  in 
case  the  property,  while  in  possession  of  the  purchaser,  should  be 
levied  upon  by  his  creditors.  That  case  and  the  one  at  bar  are  alike 
in  all  essential  particulars. 

The  engine  Smyser,  the  only  subject  of  controversy  in  this  suit,  was 
sold  on  condition  that  each  and  all  of  the  installments  should  be  regu- 
larly paid,  with  a  right  of  rescission  on  the  part  of  the  vendor  in  case 
of  default  in  any  of  the  specified  payments. 

It  js..-tftte'TlTe~ffl5tjuament^  of  conveyance  purports  to  be  a  lease,  and 
the  surns^stipu];'^'"''^  to  bf  p^TlLj-r^  ^o^  rent;  but  this  foriTTj^:asjTsed~to 
cover  the  real  transactioriT-as  much  so  as,was_thej;ent_pf_thepiano  iri' 


Cll.    1)  PROPERTY. 


309 


Murch  V.  Wright,  supra.  There  the  price  of  the  piano  was  to  be 
paid  in  thirteerTmonffis,  and  here,  that  of  the  engine,  $12,093.96,  in 
one  year.  It  was  evidently  not  the  intention  that  this  large  sum 
should  be  paid  as  rent  for  the  mere  use  of  the  engine  for  one  year. 
If  so,  why  agree  to  sell  and  convey  the  full  title  on  the  payment  of 
the  last  installment?  In  both  cases,  the  stipulated  price  of  the  property 
was  to  be  paid  in  short  installments,  and  no  words  employed  by  the 
parties  can  have  the  effect  of  changing  the  true  nature  of  the  contracts. 
In  the  case  at  bar  the  agreement  contemplated  that  the  engine  should 
be  removed  to  the  state  of  Illinois,  and  used  by  Conant  &  Co.,  in  the 
prosecution  of  their  business  as  constructors  of  a  railroad.  It  was 
accordingly  taken  there  and  put  to  the  use  for  which  it  was  purchased ; 
but  while  in  the  possession  of  Conant  &  Co.,  who  exercised  complete 
ownership  over  it,  it  was  seized  and  sold,  in  the  local  courts  of  Illinois, 
as  their  property.  These  proceedings  were  valid  in  the  jurisdiction 
where  they  took  place,  and  must  be  respected  by  the  federal  tribunals. 

The  Rho^e  Island  Locomotive  Works  took  the  risk  of  losing  its 
lien  in  case  the  property,  whj1p  in  the  po'^session  of  Conant  &  Co., 
should  be  levied  on  by  their  creditors,  and  it  cannot  complain,  as  the 
laws  of  Illinois  pOitvEed^oura"  w^y  tn  prpc;erve  and  perfect  its  lien. 

By  stipulation  the  judgment  of  the  court  below  is  affirmed  as  to  the 
locomotive  Olney,  No.  1.  .     i- 

As  to  the  locomotive  and  tender  called  Alfred  N.  Smyser  No.  3,,  ,;  UH'^'  ^  ^^ 

judgment  reversed.  p  „  .   jJiA  ^  f^    '  ^      y\.  i-V 

...H-CT-      • —     "'^1''" '  ^^^1    ' 

(^  •^^^^^^^^'^ES  V.  HARDING,  WHITMAN  &  CO.  '^^'J^rJ  l^.1^t{,^\f  '  ' 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1905.     G8  N.  J.  Eq.  622,  60  Atl.  ;^  «t^ 

This  case  involves  the  ownership  of  machinery  of  the  Philadelphia      ^._,,  /■-,    ^    (^ 
Worsted  Company,  an  insolvent  corporation  of  this  state.     The  re- 
ceiver makes  no  claim  and  submits  himself  to  the  judgment  of  the 
court.     The  controversy  is  between  the  executors  of  Daniel  Lees,  de^     'v^  /y^yvJLty  , 
ceased,  formerly  of  Lenni,  Pa.,  and  Hardmg.JWhjtnian  &  Co.,  a_co-  _^     q  • 

'paHIiership,  the  members  of  which  do  not  reside  in  the  state  of~New~^-<^  <_xXa-AX**>*^ 


■Xiiytr-^'^ 


Jersey.     The  machinery  was  formerly  owned  by  Lees  at  Lenni.     On 
November  24,  1899,  an  agreement  was  entered  into  between  Lees  and 


-fv-o^-jex^ 


the  Phjladelphia  Worsted_  Company  which  purported  by  its  terms  Jo  _  L^-'V-eXjzxo-  c^^i-yr^ 
lease  the  machinery  in  question  to  the  company  for  the  term^oTtwo^nd 
one-half  years  for  a  rental  of  $6,000,  payable  $2,000  on  the  execution 
of  the  agreement,  $1,000  in  12  months,  $1,000  in  18  months,  $1,000 
in  2  years,  and  $1,000  at  the  expiration  of  the  term;  the  deferred  pay- 
ments to  bear  1  per  cent,  interest.  The  company  agreed  to  pay  the 
rent,  and  to  surrender  the  property  at  tlie~expiratiotr6f  th'e'Tea^.  The 
agreement  then  provided  that  if,  upon  surrendering  the  property,  the 
'"ent  having  been  fully  paid,  the  company  desired  to  purchase  the  leased 


310  PARTICULAR  SUBJECTS.  (Part  2 

property,  Lees  would  sell  the  same  for  $G,000,  with  G  per  cent,  interest, 
and  that  the  amount  received  for  rent  should  be  applied  upon  the 
purchase  price.  In  case  of  default  in  payment  of  the  rent  or  perform- 
ance of  the  covenants  by  the  company,  the  vendor  might  take  possession 
of  the  property.  The  machinery  was  delivered  at  the  date  of  the  ex- 
ecution of  the  agreement  to  the  company  at  Lenni  for  use  in  its  mill 
.  at  that  place,  and  was  there  used  by  the  company  continuously  until 
April,  1901.  Jn  April  and  May^901.  itwas  rnoyed^  into  this  state, 
with  the  knowledge,  but  against  the  will  of  Lees.  Lees  died  May  30. 
1901.  The  corporation  was  adjudged  insolvent,  ^hd  a  receiver  ap- 
pointed in  this  state  October  22,  1903.  At  the  time  of  his  appointment 
a  suit  by  Harding,  Whitman  &  Co.  against  the  corporation  was  pend- 
ing. Judgment  was  entered  October  26,  1903,  execution  issued,  and 
a  levy  made  October  30,  1903.  The  judgment  creditors  were  without 
notice  of  the  lease  or  agreement  for  conditional  sale.  That  agreement 
was  recorded  in  Camden  county,  in  this  state,  October  27,  1903^ 

SwAYZE,  J.     The  agreement  in  question  under  Pennsylvania  law 
^^     ,  constituted  a  bailment,  and  the  title  of  Lees  was  good  in  Pennsylvania. 

'    -    '  '  Stadtfeld  V.  Huntsman,  92  Pa.  53,  37  Am.  Rep.  G61 ;  Ditman  v.  Cottrell, 

125  Pa.  G06,  17  Atl.  504;  Brown  v.  Billington,  163  Pa.  76,  29  Atl.  904, 
43  Am.  St.  Rep.  780;    Lippincott  v.  Scott,  198  Pa.  283,  47  Atl.  1115. 
82  Am.  St.  Rep.  801 ;  Marvin  Safe  Co.  v.  Norton,  48  N.  J.  Law,  410. 
7  Atl.  418,  57  Am.  Rep.  566.     For  the  piirposes  of  this  case  we  may 
assume  that  the  contract  would  here  He  construed^as^Tcontract^  for  con- 
ditional sale^jivliicli,  under -the  New  Jersey  statute7jf.it  is  applicable. 
^^,  %  -       would  be  void  as  against  judgment  creditors  not  having  notice  thereof, 
unless'recor^ed  as  directed  by  the  statute.     The  questTonTEcT  be  de- 
Q    S  cided  is  whether  the  validity  of  the  appellants'  title  is  to  be  determined 
I  according  to  the  law  of  Pennsylvania  or  the  law  of  New  Jersey.     The 
general  rule  is  that  the  assignment  of  a  movable,  wherever  situate,  in 
accordance  with  the  law  of  the  owner's  domicile,  is  valid  (Dicey  on 
Conflict  of  Laws,  535,  rule  142) ;  but  this  is  subject  {©"the  rule  that 
-  "an  assignment  of  a  movable  which  can  be  touched,  givmg  a  good  title 
thereto  according  to  the  law  of  the  country  where  thejriovable  is  situ- 
ate at  the  time  of  the  assignment,  is  valid."     Rule  140.     These  rules 
.  have  been  the  settled  law  of  the  English  courts  since  the  decision  of 

^jt^-^ y  '  Cammell  v.  Sewell_in  the  Exchequer  Chamber  in  1860.     5  H.  &  N. 
^^p^^     ^^b^      728;  5  English  Ruling  Cases,  891;  29  L.  J.  Ex.  350.     Camniell  v. 
<  6^'^t^  ,2£iJicll  was  approved  in  the  House  of  Lords  in  1870.     Castrique  v. 

^^  Imrie,  39  L.  J.  C.  P.  350,  L.  R.  4  H.  L.  414;  5  English  Ruling  Cases, 

899.  See  especially  the  opinion  of  Lord  Blackburn.  See,  also.  In  re 
Queensland  Mercantile  &  Agency  Company  (1891)  1  Ch.  536,  60  L. 
f.  Ch.  579,  affirmed  on  a  different  ground  '(1892)  1  Ch.  219,  61  L.  J. 
Ch.  145,  but  without  dissent  on  this  point.  The  rule  has  been  applied 
to  bills  of  exchange  transferred  in  a  foreign  country.  Alcock  v.  Smith 
(1892)  1  Ch.  238,  61  L.  J.  Ch.  161,  and  in  the  most  recent  case 
Embericos  v.  Anglo-Austrian  Bank  (1904)  2  K.  B.  870,  73  L.  J.  K.  B. 


Ch.    1)  PROPERTY.  311 

993.  In  Hooper  v.  Gumm,  L.  R.  2  Ch.  282,  36  L.  J.  Ch.  605,  the 
general  rule  was  recognized,  but  the  holder  of  the  mcumbrance.  which 
was  valid  by  American  law,  intentionally  concealed  it,  and  was  not  per- 
mitted to  assert  it  against  a  bona  fide  purchaser  for  valuable  considera- 
tion under  an  English  contract. 

The  cases  in  our  own  courts  are  not  in  conflict  with  the  rule  of  the 
English  courts.  In  Varnum  v.  Camp  (1833)  13  N.  J.  Law,  326,  25  Am. 
Dec.  476,  two  classes  of  goods  were  involved.  Some  were  goods  in 
the  store  at  Paterson,  in  this  state,  at  the  time  the  assignment  was 
made  in  New  York ;  some  were  in  the  store  in  New  York,  and  were 
sent  to  Paterson  after  the  assignment.  It  was  held  that  the  assign- 
ment did  not  transfer  the  title  to  the  goods  then  at  Paterson.  but  did 
transfer  the  title  to  the  goods  then  in  New  York ;  and  accordingly  it 
was  held  that  the  plaintifif  was  entitled  to  a  portion  of  the  articles 
replevied  and  the  defendant  to  the  residue.  The  court  thus  clearly 
recognized  that  the  validity  of  the  transfer  depended  upon  the  actual 
situs  of  the  goods.  The  opinion  of  Chief  Justice  Ewing  and  his  cita- 
tions"ffoiti  other  cases  show  that  this  was  the  view  held  by  him. 
Thus  he  says  at  page  331  of  13  N.  J.  Law  (25  Am.  Dec.  476) :  "Every 
country  has  the  right  of  regulating  the  transfer  of  all  personal  property 
within  its  territory ;  but  when  no  positive  regulation  exists  the  owner 
transfers  it  at  his  pleasure."  And  on  page  332  of  13  N.  J.  Law  (25 
Am.  Dec.  476)  he  quotes  with  approval  the  following  language  of 
Justice  Johnson  in  Smith  v.  Union  Bank  of  Georgetown,  5  Pet.  (U. 
S.)  518,  8  L.  Ed.  212 :  "That  personal  property  has  no  situs  seems 
rather  a  metaphysical  position  than  a  practical  and  legal  truth."  "In 
point  of  fact  it  cannot  be  questioned  that  goods  found  within  the  limits 
of  a  sovereign's  jurisdiction  are  subject  to  his  laws.  It  would  be  an 
absurdity,  in  terms,  to  affirm  the  contrary."  In  Frazier  v.  Fredericks 
(1853)  24  N.  J.  Law,  162,  it  was  held  that  a  voluntary  assignment  made 
in  Pennsylvania  for  the  benefit  of  creditors  would  pass  the^  title  to  a 
boat  lying  at  a  wharf  in  New  Jersey  as  against  an  attaching  creditor ; 
but  in  that  case  there  was  no  conflict  between  the  law  of  Pennsylvania 
and  the  law  of  New  Jersey.  Chief  Justice  Green  said :  "Admitting 
the  assignment  to  be  valid  by  the  laws  of  Pennsylvania,  where  the 
assignment  was  executed,  there  is  nothing  in  its  terms  repugnant  to 
the  provisions  of  our  statutes  or  to  the  policy  of  our  laws."  In 
Runyon  v.  Groshon  (1858)  12  N.  J.  Eq.  86,  the  original  owner  of  the 
picture  and  both  claimants  were  domiciled  in  New  Jersey,  and  the 
complainant  was  foreclosing  his  mortgage  in  our  courts.  There  was 
no  difficulty  in  the  way  of  following  the  law  of  the  domicile.  The 
chancellor  recognized  the  right  of  New  York  to  declare  how  personal 
property  situated  there  should  be  transferred,  and  added :  "The  prop- 
erty is  protected  by  her  laws,  and  it  is  but  reasonable  that  it  must  be 
held  and  transferred  agreeable  to  such  regulations  as  that  state  may 
see  fit  to  adopt."  In  Moore  v.  Bonnell  (1864)  31  N.  J.  Law,  90,  an 
assignment  made  in  New  York  by  a  resident  of  that  state  was  held  to 


312  PARTICULAR  SUBJECTS.  (Part  3 

transfer  a  debt  due  from  a  resident  of  this  state,  although  the  assign- 
ment made  preferences,  and  would  have  been  invalid  under  our  law. 
The  case  did  not  involve  the  title  to  tangible  goods  situate  in  New  Jer- 
sey, and  the  citation  by  the  learned  Chief  Justice  from  Story  on  the 
Conflict  of  Laws  recognizes  the  difference  in  a  case  where  the  particu- 
lar property,  from  its  nature,  has  a  necessarily  implied  locality.  More- 
.  over,  the  question  in  Moore  v.  Bonnell  arose  between  an  attaching 
creditor  whose  domicile  was  the  same  as  the  domicile  of  the  assignor, 
and  in  this  respect  the  case  resembled  Runyon  v.  Groshon. 

The  New  Jersey  cases  thus  far  cited  were  either  in  the  Supreme 
Court  or  in  the  Court  of  Chancery.  Bentley  v.  Whittemore  (1868) 
19  N.  J.  Eq.  463,  97  Am.  Dec.  671,  was  in  this  court.  In  that  case  a 
resident  of  New  York  made  an  assignment  with  preferences  for  the 
benefit  of  his  creditors,  and  executed  in  due  form  a  conveyance  to  his 
assignees  of  land  in  this  state.  The  assignees  sold  the  land  to  Bentley, 
who  paid  $6,000  in  cash  and  assumed  a  mortgage  for  $2,000.  Another 
subsisting  mortgage  was  canceled  at  the  time  of  the  sale.  Subsequent- 
ly creditors  of  the  assignor,  all  of  whom  were  nonresidents  of  this  state, 
obtained  judgments  here,  and  levied  upon  the  land.  We  held  that  the 
conveyance  to  the  assignee  passed  title  to  land  in  New  Jersey,  although 
the  preferences  were  forbidden  by  our  law.  The  ground  of  the  deci- 
sion, however,  was  that  the  deed  was  sufficient  to  pass  the  title  in  New 
Jersey.  It  was  only  the  method  of  distribution  of  the  assets  of  the 
assignor  among  his  creditors  that  was  inimical  to  our  laws.  That  this 
was  what  Chief  Justice  Beasley  had  in  mind  is  shown  by  his  statement 
that  "no  doubt  is  intended  to  be  hinted  as  to  the  settled  existence  of 
the  rule  that  the  validity  of  every  disposition  of  real  estate  must  de- 
pend upon  the  law  of  the  country  in  which  that  estate  is  situated." 
He  added :  "The  deed  in  question  has  been  regularly  executed,  ac- 
knowledged, and  recorded,  and  is  in  due  legal  form.  In  all  cere- 
monious parts,  therefore,  the  transaction  is  a  compliance  with  our  land 
regulations.  What,  then,  is  to  render  this  title  defeasible?  I  can 
imagine  nothing  that  can  be  set  up  to  invalidate  it,  except  the  idea  that 
the  distribution  of  the  assignment,  to  which  this  conveyance  is  an- 
cillary, militates  with  the  provisions  of  our  statute  upon  that  subject." 
And  it  was  properly  held  that  creditors  not  resident  in  New  Jersey 
could  not  object  to  a  method  of  distribution  of  the  estate  which  was" 
legal  by  the  law  of  the  domicile.  In  Parr  v.  Brady  (1874)  37  N.  J. 
Law,  201,  a  chattel  mortgage  was  executed  by  a  resident  of  New  York 
upon  a  coach  then  in  New  York,  and  filed  in  New  York  in  accordance 
with  the  laws  of  that  state.  The  coach  was  subsequently  brought  by 
the  owner — the  mortgagor — into  New  Jersey,  and  sold  here  to  a  bona 
fide  purchaser.  The  mortgage  was  not  filed  in  this  state,  as  then  re- 
quired by  our  statute.  The  case  therefore  involved  a  conflict  between 
the  laws  of  two  states,  in  both  of  which  the  chattel  had  at  different 
times  its  situs,  and  the  court  properly  sustained  the  title  under  the 
earlier  transfer.     The  opinion  stated  the  general  rule,  as  stated  in  the 


Ch.    1)  PROPERTY.  313 

beginning  of  this  opinion,  that  the  law  of  the  owner's  domicile  must 
govern,  but  recognized  that  "this  rule  has  its  exceptions  when  the  laws 
of  different  jurisdictions  are  in  conflict,  and  particularly  in  cases  where 
the  situs  rei  at  the  time  of  the  contract  is  in  another  state."  In  Marvin 
Safe  Co.  V.  Norton  (1886)  48  N.  J.  Law,  410,  7  Atl.  418,  57  Am. 
Rep.  566,  in  the  Supreme  Court,  the  title  was  determined  according  to 
the  law  of  the  situs.  The  title  reserved  by  the  safe  company  was  valid 
in  Pennsylvania  as  long  as  the  goods  were  in  that  state.  The  title 
acquired  by  Norton  in  New  Jersey,  under  New  Jersey  law,  was  only 
such  title  as  his  vendor,  Schwartz,  then  had,  which  was  only  a  condi- 
tional title;  and  it  was  held  that  this  title  could  not  be  made  absolute 
as  to  tangible  goods  in  New  Jersey  by  a  provision  of  the  Pennsylvania 
law.  There  was  no  conflict  between  the  title  to  the  goods  in  Penn- 
sylvania and  the  title  to  the  goods  in  New  Jersey ;  on  the  contrary,  it 
was  the  very  title  acquired  in  Pennsylvania  which  subsequently  passed 
by  the  transfer  in  New  Jersey.  In  Cronan  v.  Fox  (1889)  50  N.  J. 
Law,  417,  14  Atl.  119,  the  title  acquired  by  Fox  in  Maryland  was 
at  the  time  a  valid  title.  It  was  invalid  in  Maryland  in  the  event  of 
failure  to  record  as  against  creditors  or  purchasers ;  but  no  rights  of 
creditors  or  purchasers  intervened  while  the  cattle  were  in  Maryland, 
and  this  court  held  that  the  liability  of  the  property  to  be  seized  and 
sold  under  writ  of  attachment  must  be  determined  by  the  law  of  the 
state  where  the  property  then  was,  notwithstanding  the  domicile  of  all 
the  claimants  was  in  another  state.  In  Knowles  Loom  Works  v. 
Vacher  (1895)  57  N.  J.  Law,  490,  31  Atl.  306,  33  L.  R.  A.  305,  the  _  / 

Supreme  Court  held  that  the  situs  of  the  propertv,  and  not  the  lex  loci  a  t'  -^  V . 
contractus,  determmed  the  validity  of  the  sale,  ihe  contract  m  that 
case  was  between  a  Massachusetts  corporation  which  owned  the  looms 
then  located  in  Worcester,  sold  them  under  a  contract  made  in  New  ' 
York,  and  delivered  them  in  Paterson.  It  was  held  that  the  situs  of 
the  looms  was  in  this  state.  That  was  the  place  where  the  parties 
themselves  contemplated  that  the  looms  should  be  permanently  located. 
The  judgment  was  affirmed  in  this  court  upon  Justice  Van  Syckel's 
opinion.  In  Woolley  v.  Geneva  Wagon  Co.  (1896)  59  N.  J.  Law, 
278,  35  Atl.  789,  the  wagons  were  at  the  time  of  the  contract  in  New 
York.  The  vendee,  and  apparently  the  vendor  also,  was  a  resident  of 
that  state,  and  the  property  was  brought  into  New  Jersey  without  the 
knowledge  of  the  vendor.  Chief  Justice  Beasley  held  that  our  statute 
did  not  apply.  Manifestly  the  situs  of  the  wagons  had  never  been 
lawfully  in  New  Jersey.  They  had  been  brought  here  without  the 
owner's  consent. 

In  the  federal  courts,  also,  it  is  held  that  the  title  of  tangible  chattels 
is  determined  by  the  law  of  the  situs.  Green  v.  Van  Buskirk,  5  Wall 
307,  18  L.  Ed.  599 ;  Id.,  7  Wall.  139,  19  L.  Ed.  109 ;  Hervey  v.  Rhode 
Island  Locomotive  Works,  93  U.  S.  664,  23  L.  Ed.  1003. 

In  the  present  case  the  vice  chancellor  held  that  the  law  of  the  domi- 


t>c-^ 


314  PARTICULAR  SUBJECTS.  (Part   2 

cile  of  the  purchaser  must  control ;  that  the  purchaser  was  a  New 
Jersey  corporation,  and  the  transaction  was  governed  by  our  statute. 
The  case  exhibits  the  difficulty  which  arises  in  determining  the  ques- 
tion by  the  law  of  the  domicile.  Not  only  may  the  parties  have  differ- 
ent domiciles,  as  in  the  present  case,  but  several  persons  may  be  inter- 
ested either  as  vendors  or  vendees,  each  with  a  different  domicile. 
The  difficulty  is  not  met  by  adopting  the  law  of  the  domicile  of  the 
owner  as  the  rule,  for  the  very  question  to  be  decided  is,  who  is  the 
owner?  The  rule  which  looks  to  the  law  of  the  situs  has  the  merit  of 
adopting  the  law  of  the  jurisdiction  which  has  the  actual  control  of 
the  goods  and  the  merit  of  certainty.  It  is  not  necessary  to  the  deci- 
sion of  the  present  case  to  go  as  far  as  the  English  cases  have  gone  in 
following  the  law  of  the  situs.  The  contract  now  in  question  was  made 
in  Pennsylvania,  and  was  intended  by  the  parties  to  be  performed 
there.  The  chattels  were  at  the  time  in  Pennsylvania,  and  were  re- 
moved to  this  state  without  the  consent  of  the  vendor.  In  Penn- 
sylvania there  was  no  transfer  of  title,  but  a  mere  contract  of  bailment. 
We  think  in  such  a  case  the  law  of  Pennsylvania  must  control.  The 
vice  chancellor  relied  upon  the  case  of  Knowles  Loom  Works  v. 
Vacher,  57  N.  J.  Law,  490,  31  Atl.  306,  33  L.  R.  A.  305,  but 
that  case  was  not  decided  upon  the  ground  that  the  vendee  was  a 
New  Jersey  corporation,  but  upon  the  ground  that  the  property  was  to 
be  delivered,  and  was  delivered  to  and  held  by,  the  purchaser  in  this 
state.  Justice  Van  Syckel  said  that  the  situs  of  the  property,  and  not 
the  lex  loci  contractus,  determined  the  validity  of  such  sales.  What 
the  court  held  was  that  the  situs,  under  the  circumstances  of  that 
case,  was  in  New  Jersey.  In  tlie_present  case  the  place  of  contract  and 
the  situs  at  the  time  wasJrL.Pennsylvania.  It  is  not  necessary  to  de- 
cide whether  or  not  the  state  of  New  Jersey,  by  virtue  of  the  power 
it  may  exert  over  property  within  its  jurisdiction,  might  divest  a  title 
which  was  good  in  Pennsylvania ;  for,  in  our  view  of  the  case,  the  law 
of  this  state  does  not  have  that  effect.  The  contract  between  Lees  and 
the  Philadelphia  Worsted  Company  was  valid  at  common  law.  Cole 
V.  Berry,  42  N.  J.  Law,  308,  36  Am.  Rep.  511.  This  rule  was  modified 
by  a  statute  in  1889  (P.  L.  1889,  p.  431;  Gen.  St.  p.  891,  §§  185-191), 
which  now  appears  in  the  act  respecting  conveyances  (Revision  of 
1898)  P.  L.  1898,  pp.  699,  700,  §§  71,  72.  We  think  that  this  act  is 
intended  to  affect  contracts  for  goods  subject  to  the  jurisdiction  of 
New  Jersey  at  the  time  the  contract  is  made,  or  intended  by  the  parties 
at  that  time  to  be  brought  within  the  jurisdiction  of  this  state.  We 
are  led  to  this  conclusion  by  the  provisions  of  the  seventy-second 
section,  which  require  the  contract  to  be  recorded  in  the  office  of  the 
clerk  of  the  court  of  common  pleas  of  the  county  wherein  the  party 
contracting  to  buy,  if  a  resident  of  this  state,  shall  reside  at  the  time 
of  the  execution  thereof,  and,  if  not  a  resident  of  this  state,  then  in  the 
clerk's  office  of  the  county  where  the  property  bought  shall  be  at  the 


Robert  E.  Stone 


Ch.    1)  PROPERTY.  315 

time  of  the  execution  of  such  instrument.  It  would  be  of  no  avail 
to  require  record  in  the  county  where  the  vendee  resides  at  the  time  of 
the  execution  of  the  instrument  unless  it  were  meant  that  the  record 
should  be  substantially  contemporaneous  with  the  date  of  the  instru- 
ment. To  require  record  in  that  county  two  years  later,  when  the 
vendee  might  then  reside  elsewhere,  would  not  serv^e  the  statute's  pur- 
pose of  constructive  notice  to  judgment  creditors  and  subsequent  pur- 
chasers and  mortgagees  in  good  faith. 

There  is  another  difficulty  in  the  way  of  applying  our  statute  to  the 
present  case.  The  statute  applies  only  to  conditional  sales.  The 
contract  now  in  question  was  a  contract  of  bailment,  but  not  a  con- 
tract of  conditional  sale  as  long  as  the  goods  were  subject  to  the  juris- 
diction of  Pennsylvania.  Taking  the  view  of  the  case  most  favorable 
to  the  judgment  creditors,  the  contract  did  not  become  a  contract  of 
conditional  sale  until  the  goods  were  moved  to  New  Jersey,  a  year  and 
a  half  after  its  execution.  It  would  be  a  singular  construction  which 
would  require  a  contract  to  be  recorded  in  a  county  where  one  of  the 
parties  resides  a  year  and  a  half  before  the  contract  subject  to  the  opera- 
tion of  the  statute.  The  authorities  sustain  the  view  we  have  adopted. 
In  Varnum  v.  Camp,  13  N.  J.  Law,  326,  25  Am.  Dec.  476,  the  title  of  the 
assignee  to  the  goods  in  New  York  at  the  time  of  the  assignment  was 
sustained  notwithstanding  the  goods  were  afterward  brought  to  Pater- 
son,  and  there  levied  upon.  In  Parr  v.  Brady,  37  N.  J.  Law,  201,  the 
title  under  the  New  York  chattel  mortgage  was  sustained,  although  the 
goods  were  afterwards  brought  to  this  state  and  sold,  and  although 
the  mortgagee  had  not  complied  with  the  provisions  of  our  chattel 
mortgage  act  requiring  the  filing  of  the  mortgage  in  the  same  language 
used  in  section  72  of  the  act  respecting  conveyances  as  to  recording 
contracts  of  conditional  sale.  ^  The  Supreme  Court  said:  "The  inten- 
tion to  do  so  [i.  e.,  to  prevent  a  foreign  mortgage  from  having  effect 
in  this  state]  ought  to  be  clearly  manifested  when  the  object  is  to 
abridge  the  validity  of  a  common-law  contract."  In  Woolley  v. 
Geneva  Wagon  Co.,  59  N.  J.  Law,  278,  35  Atl.  789,  it  was  the  im- 
possibility of  complying  with  the  statute  that  led  the  court  to  hold  it 
not  applicable.  The  courts  of  other  jurisdictions  are  almost  unanimous 
in  sustaining  a  title  good  under  the  law  of  the  original  situs,  although 
not  good  under  the  law  of  the  jurisdiction  to  which  the  property  may 
be  removed  by  one  party  without  the  consent  of  the  other.  Bank  of 
United  States  v.  Lee,  13  Pet.  (U.  S.)  107,  10  L.  Ed.  81 ;  Shapard  v. 
Hynes.  101  Fed.  449,  45  C.  C.  A.  271,  52  L.  R.  A.  675  (a  well-con- 
sidered opinion  in  the  United  States  Circuit  Court  of  Appeals) ;  Edger- 
ly  V.  Bush,  81  N.  Y.  199;  Nichols  v.  IMase,  94  N.  Y.  160;  Cleveland 
Mach.  Works  v.  Lang,  67  N.  H.  348,  31  Atl.  20,  68  Am.  St.  Rep. 
675. 

In  our  judgment,  the  title  of  Lees'  executors  to  the  machinery  in 
question  was  valid,  and  the  order  should  have  directed  the  receiver  to 


316  PARTICULAR  SUBJECTS.  (Part  2 

surrender  possession  thereof  to  them.  It  must  therefore  be  reversed, 
with  costs,  and  the  cause  remitted  to  the  Court  of  Chancery  for  pro* 
ceedings  in  conformity  with  this  opinion.^^ 


BARNETT  v.  KINNEY. 

(Supreme  Court  of  the  United  States,  1893.    147  U.  S.  476,  13  Sup   Ct.  403,  37 

L.  Ed.  247.) 

M.  H.  Lipman,  a  resident  of  the  territory  of  Utah,  made  a  voluntary 
assignment  on  November  23,  1887,  to  Barnett,  covering  real  and  per- 
sonal property  in  Utah  and  personal  property  in  Alturas  county,  Idaho, 
preferring  certain  creditors.  Such  preferences  were  valid  according 
to  the  laws  of  Utah,  but  not  valid  according  to  the  laws  of  Idaho.  On 
November  25,  1887,  Barnett,  as  assignee,  took  actual  possession  of 
the  personal  property  in  Idaho,  and  on  November  26th  filed  the  assign- 
ment for  record  in  the  proper  office  in  Alturas  county.  On  the  same 
day,  but  after  the  filing  of  the  assignment  and  with  knowledge  there- 
of, the  sheriff  of  Alturas  county,  Kinney,  took  possession  of  the  prop- 
erty under  a  writ  of  attachment  in  favor  of  the  St.  Paul  Knitting 
Works,  a  Minnesota  corporation,  against  Lipman.  Barnett  thereupon 
brought  replevin.  The  judgment  rendered  in  favor  of  the  plaintiff 
in  the  lower  court  was  reversed  by  the  Supreme  Court  of  the  territory. 

22  See  Weinstein  v.  Freyer,  93  Ala.  257,  9  South.  285,  12  L.  R.  A.  700  (1891). 

As  to  conditional  sales,  see,  in  general,  64  L.  R.  A.  833-836.  As  to  validity 
of  warehouse  receipts,  see  In  re  St.  Paul  &  K.  C.  Grain  Co.,  89  Minn.  98,  94 
N.  W.  218,  99  Am.  St.  Rep.  549  (1903). 

"No  sale,  mortgage,  hypothecation,  or  conveyance  of  any  vessel  or  part  of 
any  vessel  of  the  United  States  is  valid  as  to  third  parties  xmless  it  is  recorded 
in  the  office  of  the  collector  of  customs  where  such  vessel  is  registered  or  en- 
rolled."    Section  4192,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  2837). 

See,  also,  Thuret  v.  .Jenkins,  7  Mart.  (La.)  318,  12  Am.  Dec.  508  (1820)  ; 
Minor,  Conflict  of  Laws,  §  120. 

As  to  maritime  liens,  see,  in  general,  19  Am.  &  Eng.  Encyc.  Law,  1079--1137, 
and  26  Cyc.  743-816 ;    and  as  to  law  governing,  20  Cyc.  809-810. 

Continental  Law. — A  mortgage,  conditional  sale,  pledge,  or  other  proper- 
ty right  validly  created  by  the  lex  rei  sitai  will  be  recognized  in  another  ju- 
risdiction  to  which  the  chattel  has  been  removed.  R.  G.  Feb.  28,  1893  (3  Nie- 
meyer,  622).  But  not  in  the  face  of  some  pronounced  local  policy;  e.  g.,  where 
general  liens  or  reservations  of  title  are  unknown  to  the  law  of  such  Jurisdic- 
tion. Obertribunal,  Berlin,  April  8,  1875  (31  Seuffert's  Archiv.  257) ;  R.  G.  Nov. 
25,  1895  (6  Niemeyer,  424).  Or  where  a  pledge  without  delivery  of  title  is  not 
recognized  in  the  new  jurisdiction.    Cass.  March  19,  1872  (D.  1874,  1,  465). 

The  rank  of  maritime  liens  is  determined  in  Germany  by  the  lex  fori  R 
G.  Feb.  9,  1900  (10  Niemeyer,  472) ;  R.  G.  Nov.  25,  1890  (1  Niemever  365)  • 
in  France,  by  the  law  of  the  flag,  App.  Rouen,  May  10,  1905  (21  Autran    ''93)' 

Consult,    in   general,    Ch.    Lyon-Caeu,    Ktudes   de   droit   international' prive 
maritime,   4   Clunet,    489-495;     9    Clunet,   241-260,   488-500,    593-606      C     E 
Lelebre,  Bes  conflits  des  lois  en  matiere  de  propriety  de  navires,  d'hyDotheaues 
et  autres  droits  r6els,  20  Autran,  796-800. 


Ch.    1)  PROPERTY.  317 

2  Idaho,  740,  23  Pac.  922,  24  Pac.  624.     An  appeal  was  taken  to  the 
Supreme  Court  of  the  United  States. ^^ 

Fuller,  C.  J.  The  Supreme  Court  of  the  territory  held  that  a  non- 
resident could  not  make  an  assignment,  with  preferences,  of  personal  ,  tt- 
property  situated  in  Idaho,  that  would  be  valid  as  against  a  nonresi-  "^i  DJi/y. 
dent  attaching  creditor,  the  latter  being  entitled  to  the  same  rights  as  a 
citizen  of  Idaho;  that  the  recognition  by  one  state  of  the  laws  of 
another  state  governing  the  transfer  of  property  rested  on  the  prin- 
ciple of  comity,  which  always  yielded  when  the  policy  of  the  state 
where  the  property  was  located  had  prescribed  a  different  rule  of 
transfer  from  that  of  the  domicile  of  the  owner;  that  this  assignment 
was  contrary  to  the  statutes  and  the  settled  policy  of  Idaho,  in  that  it 
provided  for  preferences ;  that  the  fact  that  the  assignee  had  taken  and 
was  in  possession  of  the  property  could  not  affect  the  result ;  and  that 
the  distinction  between  a  voluntary  and  an  involuntary  assignment  was 
entitled  to  no  consideration. 

Undoubtedly  there  is  some  conflict  of  authority  on  the  question  as 
to  how  far  the  transfer  of  personal  property  by  assignment  or  sale, 
lawfully  made  in  the  country  of  the  domicile  of  the  owner,  will  be 
held  to  be  valid  in  the. courts  of  another  country,  where  the  property 
is  situated,  and  a  different  local  rule  prevails. 

We  had  occasion  to  consider  this  subject  somewhat  in  Cole  v.  Cun- 
ningham, 133  U.  S.  107,  129,  10  Sup.  Ct.  269,  33  L.  Ed.  538,  and  it 
was  there  said:  "Great  contrariety  of  state  decision  exists  upon  this 
general  topic,  and  it  may  be  fairly  stated  that,  as  between  citizens  of 
the  state  of  the  forum,  and  the  assignee  appointed  under  the  laws  of 
another  state,  the  claim  of  the  former  will  be  held  superior  to  that  of 
the  latter  by  the  courts  of  the  former;  while,  as  between  the  assignee 
and  citizens  of  his  own  state  and  the  state  of  the  debtor,  the  laws  of 
such  state  will  ordinarily  be  applied  in  the  state  of  the  litigation,  unless 
forbidden  by,  or  inconsistent  with,  the  laws  or  policy  of  the  latter. 
Again,  although,  in  some  of  the  states,  the  fact  that  the  assignee  claims 
under  a  decree  of  a  court  or  by  virtue  of  the  law  of  the  state  of  the 
domicile  of  the  debtor  and  the  attaching  creditor,  and  not  under  a  con- 
veyance by  the  insolvent,  is  regarded  as  immaterial,  yet,  in  most,  the 
distinction  between  involuntary  transfers  of  property,  such  as  work  by  ,  . 

operation  of  law,  as  foreign  bankrupt  and  insolvent  laAvs,  and  a  volun-      ^  x^t^^-«^^*^i^ 
tary  conveyance  is  recognized.     The  reason  for  the  distinction  is  that  YjjiXu.hJ.a^  Uy£»^^t' 
a  voluntary  transfer,  if  valid  where  made,  ought  generally  to  be  valid  L  ^  .    «*-  y_  ^p^   ^ 
everywhere,  being  the  exercise  of  the  personal  right  of  the  owner  to    !        g       t~ . 
dispose  of  his  own,  while  an  assignment  by  operation  of  law  has  no    [  J^^ 

legal  operation  out  of  the  state  in  which  the  law  was  passed.    This  is   ' 
a  reason  which  applies  to  citizens  of  the  actual  situs  of  the  property 
when  that  is  elsewhere  than  at  the  domicile  of  the  insolvent,  and  the 

23  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


318  PARTICULAR  SUBJECTS.  (Part  2 

controversy  has  chiefly  been  as  to  whether  property  so  situated  can 
pass  even  by  a  voluntary  conveyance." 

We  have  here  a  voluntary  transfer  of  his  property  by  a  citizen  of 

Utah  for  the  payment  of  his  debts,  with  preferences,  which  transfer 

was  valid  in  Utah,  where  made,  and  was  consummated  by  the  delivery 

6^  of  the  property  in  Idaho,  where  it  was  situated,  and  then  taken  on  an 

(xaJ^  attachment  in  favor  of  a  creditor  not  a  resident  or  citizen  of  Idaho. 

^-'^  Was  there  anything-  in  the  statutes  or  established  policy  of  Idaho  in- 

i      validating  such  transfer? 

Title  12  of  part  3  of  the  Revised  Statutes  of  the  Territory  of  Idaho, 
entitled  "Of  Proceedings  in  Insolvency"  (Rev.  St.  §§  5875-5932),  pro- 
vided that  "no  assignment  of  any  insolvent  debtor,  otherwise  than  as 
provided  in  this  title,  is  legal  or  binding  on  creditors" ;  that  creditors 
should  share  pro  rata,  "without  priority  or  preference  whatever" ;  for 
the  discharge  of  the  insolvent  debtor  upon  compliance  with  the  provi- 
sions of  the  title,  by  application  for  such  discharge  by  petition  to  the 
district  court  of  the  county  in  which  he  had  resided  for  six  months 
next  preceding,  with  schedule  and  inventory  annexed,  giving  a  true 
statement  of  debts  and  liabilities,  and  a  description  of  all  the  insolvent's 
estate,  including  his  homestead,  if  any,  and  all  property  exempt  by  law 
from  execution.  The  act  applied  to  corporations  and  partnerships,  and 
declared  that,  if  the  partners  resided  in  different  counties,  that  court 
in  which  the  petition  was  first  filed  should  retain  jurisdiction  over  the 
case.  Nothing  is  clearer  from  its  various  provisions  than  that  the 
statute  had  reference  only  to  domestic  insolvents.  As  pointed  out  by 
Judge  Berry  in  his  dissenting  opinion,  the  first  section  of  the  58  upon 
this  subject,  in  providing  that  "every  insolvent  debtor  may  upon  com- 
pliance with  the  provisions  of  this  title,  be  discharged  from  his  debts 
and  liabilities,"  demonstrates  this.  The  Legislature  of  Idaho  certainly 
did  not  attempt  to  discharge  citizens  of  other  jurisdictions  from  their 
liabilities,  nor  intend  that  personal  property  in  Idaho,  belonging  to 
citizens  of  other  states  or  territories,  could  not  be  applied  to  the  pay- 
ment of  their  debts  unless  they  acquired  a  six  months'  residence  in 
some  county  of  Idaho,  and  went  through  its  insolvency  court. 

The  instrument  in  controversy  did  not  purport  to  be  executed  under 
any  statute,  but  was  an  ordinary  common-law  assignment,  with  pref- 
erences, and  as  such  was  not,  in  itself,  illegal.  Jewell  v.  Knight,  123 
U.  S.  426,  434,  8  Sup.  Ct.  193,  31  L.  Ed.  190.  And  it  was  found  as  a 
fact  that  it  was  valid  under  the  laws  of  Utah.  While  the  statute  of 
Idaho  prescribed  pro  rata  distribution,  without  preference,  in  assign- 
ments under  the  statute,  it  did  not  otherwise  deal  with  the  disposition 
of  his  property  by  a  debtor,  nor  prohibit  preferences  between  nonresi- 
dent debtors  and  creditors  through  aii  assignment  valid  by  the  laws  of 
the  debtor's  domicile.  No  just  rule  required  the  courts  of  Idaho,  at 
the  instance  of  a  citizen  of  another  state,  to  adjudge  a  transfer,  valid 
at  common  law  and  by  the  law  of  the  place  where  it  was  made,  to  be 
invalid,  because  preferring  creditors  elsewhere,  and  therefore  in  con- 


Ch.    1)  PROPERTY.  319 

travention  of  the  Idaho  statute  and  the  public  policy  therein  indicated 
in  respect  of  its  own  citizens,  proceeding  thereunder.  The  law  of  the 
situs  was  not  incompatible  with  the  law  of  the  domicile. 

In  Halsted  v.  Straus  (C.  C.)  33  Fed.  279,  which  was  an  action  in 
New  Jersey,  involving  an  attachment  there  by  a  New  York  creditor  as 
against  the  voluntary  assignee  of  a  New  York  firm,  the  property  in 
dispute  being  an  indebtedness  of  one  Straus,  a  resident  of  New  Jersey, 
to  the  firm,  Mr.  Justice  Bradley  remarked :  "It  is  true  that  the  statute 
of  New  Jersey  declares  that  assignments  in  trust  for  the  benefit  of 
creditors  shall  be  for  their  equal  benefit,  in  proportion  to  their  several 
demands,  and  that  all  preferences  shall  be  deemed  fraudulent  and  void ; 
but  this  law  applies  only  to  New  Jersey  assignments,  and  not  to  those 
made  in  other  states,  which  affect  property  or  creditors  in  New  Jersey. 
It  has  been  distinctly  held  by  the  courts  of  New  Jersey  that  a  vol- 
untary assignment  made  by  a  nonresident  debtor,  which  is  valid 
by  the  law  of  the  place  where  made,  cannot  be  impeached  in  New 
Jersey,  with  regard  to  property  situated  there,  by  nonresident  debt- 
ors. Bentley  v.  Whittemore,  19  N.  J.  Eq.  462,  97  Am.  Dec.  671 ; 
Moore  v.  Bonnell,  31  N.  J.  Law,  90.  The  execution  of  foreign  assign- 
ments in  New  Jersey  will  be  enforced  by  its  courts  as  a  matter  of 
comity,  except  when  it  would  injure  its  own  citizens;  then  it  will  not. 
If  Deering.  Milliken  &  Co.  were  a  New  Jersey  firm,  they  could  suc- 
cessfully resist  the  execution  of  the  assignment  in  this  case.  But  they 
are  not ;  they  are  a  New  York  firm.  New  York  is  their  business  resi- 
dence and  domicile.  The  mere  fact  that  one  of  the  partners  resides  in 
New  Jersey  cannot  alter  the  case.  The  New  Jersey  courts,  in  carrying 
out  the  policy  of  its  statute  for  the  protection  of  its  citizens,  by  refus- 
ing to  carry  into  effect  a  valid  foreign  assignment,  will  be  governed  by 
reasonable  rules  of  general  jurisprudence;  and  it  seems  to  me  that  to 
refuse  validity  to  the  assignment  in  the  present  case  would  be  unrea- 
sonable and  uncalled  for." 

In  ]\Iay  v.  First  Nat.  Bank,  122  111.  551,  13  N.  E.  S06,  the  Supreme 
Court  of  Illinois  held  that  the  provision  in  the  statute  of  that  state 
prohibiting  all  preferences  in  assignments  by  debtors  applied  only 
to  those  made  in  the  state,  and  not  to  those  made  in  other  states ;  that 
the  statute  concerned  only  domestic  assignments  and  domestic  credit- 
ors ;  and  the  court,  in  reference  to  the  contention  that,  if  not  against 
the  terms,  the  assignment  was  against  the  policy  of  the  statute,  said : 
"An  assignment  giving  preferences,  though  made  without  the  state, 
might,  as  against  creditors  residing  in  this  state,  with  some  reason,  be 
claimed  to  be  invalid,  as  being  against  the  policy  of  the  statute  in  re- 
spect of  domestic  creditors ;  that  it  was  the  policy  of  the  law  that  there 
should  be  an  equal  distribution  in  respect  to  them.  But,  as  the  statute 
has  no  application  to  assignments  made  without  the  state,  we  cannot 
see  that  there  is  any  policy  of  the  law  which  can  be  said  to  exist  with 
respect  to  such  assignments,  or  with  respect  to  foreign  creditors,  and 
why  nonresidents  are  not  left  free  to  execute  voluntary  assignments, 


320  PARTICULAR  SUBJECTS.  (Part  2 

• 

with  or  without  preferences,  among  foreign  creditors,  as  they  may 
see  fit,  so  long  as  domestic  creditors  are  not  affected  thereby,  without 
objection  lying  to  such  assignments  that  they  are  against  the  policy 
of  our  law.  The  statute  was  not  made  for  the  regulation  of  foreign 
assignments,  or  for  the  distribution,  under  such  assignments,  of  a 
debtor's  property  among  foreign  creditors." 

In  Frank  v.  Bobbitt,  155  Mass.  112,  29  N.  E.  209,  a  voluntary  assign- 
ment made  in  North  Carolina,  and  valid  there,  was  held  valid  and  en- 
forced in  Massachusetts,  as  against  a  subsequent  attaching  creditor  of 
the  assignors,  resident  in  still  another  state,  and  not  a  party  to  the 
assignment.  The  Supreme  Judicial  Court  observed  that  the  assign- 
ment was  a  voluntary,  and  not  a  statutory,  one ;  that  the  attaching  cred- 
itors were  not  resident  in  Massachusetts ;  that  at  common  law,  in  that 
state,  an  assignment  for  the  benefit  of  creditors  which  created  prefer- 
ences was  not  void  for  that  reason ;  and  that  there  was  no  statute  which 
rendered  invalid  such  an  assignment  when  made  by  parties  living  in 
another  state,  and  affecting  property  in  Massachusetts ;  citing  Train  v. 
Kendall,  137  Mass.  366.  Referring  to  the  general  rule  that  a  con- 
tract, valid  by  the  law  of  the  place  where  made,  would  be  regarded  as 
valid  elsewhere,  and  stating  that  "it  is  not  necessary  to  inquire  whether 
this  rule  rests  on  the  comity  which  prevails  between  different  states 
and  countries,  or  is  a  recognition  of  the  general  right  which  every 
one  has  to  dispose  of  his  property  or  to  contract  concerning  it  as  he 
chooses,"  the  court  said  that  the  only  qualification  annexed  to  voluntary 
assignments  made  by  debtors  living  in  another  state  had  been  "that  this 
court  would  not  sustain  them  if  to  do  so  would  be  prejudicial  to  the 
interests  of  our  own  citizens,  or  opposed  to  public  policy,"  and  added : 
"As  to  the  claim  of  the  plaintiffs  that  they  should  stand  as  well  as  if 
they  were  citizens  of  this  state,  it  may  be  said,  in  the  first  place,  that 
the  qualification  attached  to  foreign  assignments  is  in  favor  of  our  own 
citizens  as  such,  and,  in  the  next  place,  that  the  assignment  being  valid 
by  the  law  of  the  place  where  it  was  made,  and  not  adverse  to  the  in- 
terests of  our  citizens,  nor  opposed  to  public  policy,  no  cause  appears 
for  pronouncing  it  invalid."  And  see,  among  numerous  cases  to  the 
same  effect,  Butler  v.  Wendell,  57  Mich.  62,  23  N.  W.  460,  58  Am. 
Rep.  329 ;  Receiver  of  State  Bank  at  New  Brunswick  v.  First  Nat, 
Bank,  34  N.  J.  Eq.  450;  Egbert  v.  Baker,  58  Conn.  319,  20  Atl.  466; 
Chafee  v.  Fourth  Nat.  Bank,  71  Me.  514,  36  Am.  Rep.  345 ;  Ocker- 
man  v.  Cross,  54  N.  Y.  29 ;  Weider  v.  Maddox,  GG  Tex.  372,  1  S.  W. 
168,  59  Am.  Rep.  617;  Thurston  v,  Rosenfield,  42  Mo.  474,  97  Am. 
Dec.  351. 

We  do  not  regard  our  decision  in_  Green  v._ Van  ,.Buskirk.  5  Wall. 
307,  18  L.  Ed.  599 ;  Id.,  7  Wall.  139,  19  L.  Ed.^lOoTas  to  the  contrary. 
That  case  was  fully  considered  in  Cole  v.  Cunningham,  supra,  and  need 
not  be  re-examined.  The  controversy  was  between  two  creditors  of 
the  owner  of  personalty  in  Illinois,  one  of  them  having  obtained  judg- 
ment in  a  suit  in  which  the  property  was  attached,  and  the  other  claim- 


Ch.    1)  PROPERTY.  321 

ing-  under  a  chattel  mortgage.  By  the  IlHnois  statute  such  a  mort- 
gage was  void  as  against  third  persons,  unless  acknowledged  and 
recorded  as  provided,  or  unless  the  property  was  delivered  to  and  re- 
mained with  the  mortgagee;  and  the  mortgage  in  that  case  was  not 
acknowledged  and  recorded,  nor  had  possession  been  taken.  All  par- 
ties were  citizens  of  New  York,  but  that  fact  was  not  considered 
sufficient  to  overcome  the  distinctively  politic  and  coercive  law  of 
Illinois. 

In  our  judgment  the  Idaho  statute  was  inapplicable,  and  the  assign- 
ment was  in  contravention  of  no  settled  policy  of  that  territory.  It 
was  valid  at  common  law,  and  valid  in  Utah,  and,  the  assignee  having 
taken  possession  before  the  attachment  issued,  the  district  court  was 
right  in  the  conclusions  of  law  at  which  it  arrived. 

The  judgment  is  reversed,  and  the  cause  remanded  to  the  Supreme 
Court  of  the  state  of  Idaho  for  further  proceedings  not  inconsistent 
with  this  opinion.     Judgment  reversed.-* 

2  4  As  to  assignments  for  the  benefit  of  creditors,  see  Edson  R.  Sunderland, 
Foreisn  Yolimtarv  Assignments  for  the  Benefit  of  Creditors,  2  Mich.  Law 
Rev.  112-126,  180-189;  65  L.  R.  A.  353-363;  Minor,  Conflict  of  Laws,  §§  133- 
135.  As  to  when  an  assignment  is  deemed  voluntary,  see  Security  Trust  Co. 
V.  Dodd,  173  U.  S.  624,  19  Sup.  Ct.  545,  43  L.  Ed.  835  (1899),  post,  p.  741. 

A  voluntary  assignment,  valid  where  made,  will  operate  to  pass  title  to  per- 
sonal property  wherever  situated,  even  as  to  local  creditors,  provided  it  would 
not  have  been  ineifective  as  to  attaching  creditors  had  it  been  made  at  the 
situs  of  the  property.  First  Nat.  Bank  v.  Walker.  61  Conn.  154,  23  Atl.  696 
(1891) ;  Train  v.  Kendall,  137  Mass.  366  (1884) ;  J.  M.  Atherton  Co.  v.  Ives  (C. 
C.)  20  Fed.  8&4  (1884).  In  Illinois,  however,  local  creditors  are  always  pre- 
ferred to  the  assignee  under  a  foreign  assignment. 

"In  the  absence  of  claims  of  domestic  creditors,  the  assignee  under  a  valid 
foreign  assignment  may  reduce  to  his  possession  the  property,  and  collect  the 
debts  assigned  to  him  within  this  state ;  and  debtors  here,  owing  the  assignor, 
and  having  no  set-off,  will  be  compelled  to  pay  the  assignee.  But  if  the  for- 
eign assignment,  if  made  here,  would  be  set  aside  as  fraudulent,  or  is  conti*ary 
to  the  policy  of  our  laws,  our  courts  will  not  enforce  it  as  against  attaching 
creditors,  whether  foreign  or  domestic,  although  it  may  be  valid  in  the  state 
where  made.  May  v.  Wannemacher.  Ill  Mass.  202  (1872) ;  Zipcey  v.  Thomp- 
son. 1  Gray  (Mass.)  243  (1854) ;  Fall  River  Iron  Works  Ck).  v.'  Croade,  15 
Pick.  (Mass.)  11  (1833);  Kelly  v.  Crapo.  45  N.  Y.  86,  6  Am.  Rep.  35  (1871); 
Guillander  v.  Howell,  35  N.  T.  657  (1866).  As  a  voluntary  foreign  assign- 
ment, valid  in  the  state  where  made,  is  enforced  in  this  state  as  a  matter  of 
comity,  our  courts  will  not  enforce  it  to  the  prejudice  of  our  citizens  who 
may  have  demands  against  the  assignor.  It  is  contrary  to  the  policy  of  our 
laws  to  allow  the  property  or  funds  of  a  nonresident  debtor  to  be  withdrawn 
from  this  state  before  his  creditors  residing  here  have  been  paid,  and  thus 
compel  them  to  seek  redress  in  a  foreign  jurisdiction.  So  it  was  held  in 
Heyer  v.  Alexander,  108  111.  385  (1884),  that  a  voluntary  assignment  of  a  non- 
resident debtor's  property,  valid  nnder  the  laws  of  the  state  where  made,  will 
not  be  enforced  here  as  against  domestic  attaching  creditors."  Woodward  v. 
Brooks,  128  111.  222,  227,  20  N.  E.  685,  3  L.  R.  A.  702,  15  Am.  St.  Rep.  104 
(1889). 

The  title  acquired  under  a  foreign  assignment  has  been  recognized,  even  as 
to  local  creditors,  though  such  assignment  would  have  been  invalid  if  made 
under  the  lex  rei  sitae  et  fori.  Livermore  v.  Jenckes,  21  How.  126,  16  L.  Ed. 
55  (1858).  Most  courts  under  such  circumstances  prefer,  however,  resident 
creditors.  Zipcey  v.  Thompson,  1  Grav  (Mass.)  243  (1854)  ;  Brvan  v.  Bris- 
bin,  26  Mo.  423,  72  Am.  Dec.  219  (18.58)  ;  In  re  Dalpav,  41  Minn.  532,  43  N. 
W.  564,  6  L.  R.  A.  108,  16  Am.  St.  Rep.  729  (1889).    But  not  creditors  of  the 

LOE.CONF.L.— 21 


322  PARTICULAR  SUBJECTS.  (Part  2 


II.  Intangible. 
WILLIAMS  V.  COLONIAL  BANK. 

(Court  of  Appeal,  1888.     57  L.  J.  Ch.  [N.  S.]  826,  38  Ch.  D.  388.) 

John  M.  Williams,  a  resident  of  England,  was  the  owner  of  1,210 
shares  of  stock  in  the  New  York  Cenfral  &  Hudson  River  Railroad 
Company.  His  executors,  in  order,  as  they  alleged,  to  have  the  shares 
transferred  to  their  own  names,  sent  the  certificates  to  Thomas  &  Co., 
brokers,  who  had  usually  acted  for  Mr.  Williams,  in  order  that  they 
might  send  them  to  America.  Upon  the  request  of  Thomas  &  Co. 
the  executors  signed  the  certificates  in  blank.  Thomas  &  Co.  deposited 
the  certificates,  with  the  transfers  still  in  blank,  with  the  defendants, 
the  Colonial  Bank,  as  security  for  the  balance  due  from  them  to  the 
bank.     Later  50  of  the  certificates  were  given  up  to  Thomas  &  Co., 

state  in  which,  the  assignment  was  made.  Whipple  v.  Thayer,  16  Pick.  (Mass.) 
25,  26  Am.  Dec.  626  (1834) ;  Bentley  v.  Wliittemore,  19  N.  J.  Eq.  462,  97  Am. 
Dec.  671  (1868).  Nor  creditors  of  a  third  state.  Bentley  v.  Whittemore,  19 
N.  J.  Eq.  462,  97  Am.  Dec.  671  (1868)  ;  May  v.  First  Nat.  Bank,  122  111.  551, 
13  N.  E.  806  (1887)  ;  Frank  v.  Bobbitt,  155  Mass.  112,  29  N.  E.  209  (1891)  ; 
Cook  V.  Van  Horn,  81  Wis.  291,  50  N.  W.  893  (1891). 

The  Massachusetts  doctrine  is  expressed  by  the  following  quotation  from 
the  opinion  of  Wells,  J.,  in  May  v.  Wannemacher,  111  Mass.  202,  208  (1872)  : 
"An  assignment  made  by  the  debtor  himself  in  another  state,  which,  if  made 
here,  would  be  set  aside  for  want  of  consideration  or  delivery,  or  as  fraudu- 
lent, or  contravening  the  policy  of  the  law  of  this  Commonwealth,  will  not  be 
sustained  here  on  attachment,  although  valid  in  the  state  or  country  where 
made.  *  *  *  But  in  each  case  the  assignment  is  always  sustained  so  far 
as  it  affects  property  which  was  at  the  time  within  the  jurisdiction  where  it 
was  made.  Benedict  v.  Parmenter,  13  Gray  (Mass.)  88  (1859) ;  Wales  v.  Alden, 
22  Pick.  (Mass.)  245  (1839).  And  also  as  against  all  citizens  of  that  juris- 
diction, even  when  seeking  a  remedy  here  against  property  found  here." 

As  to  constitutionality  of  discrimination  between  resident  and  nonresident 
creditors,  see  Reynolds  v.  Adden,  130  U.  S.  348,  10  Sup.  Ct.  843,  34  L.  Ed.  360 
(1890) ;  Blake  v.  McClung,  172  U.  S.  239,  19  Sup.  Ct.  165,  43  L.  Ed.  432  (1898) ; 
Belfast  Sav.  Bank  v.  Stowe,  92  Fed.  100,  34  C.  C.  A.  229  (1899) ;  The  Disconto 
Gesellschaft  v.  Umbreit,  208  U.  S.  570,  28  Sup.  Ct.  337,  52  L.  Ed.  625  (1908). 
See,  also,  Chafee  v.  Fourth  Nat.  Bank,  71  Me.  514,  36  Am.  Rep.  345  (1880); 
Sturtevant  v.  Armsby  Co.,  66  N.  H.  557,  23  Atl.  368.  49  Am.  St.  Rep.  627 
(1891)  ;    Hilliard  v.  Enders,  196  Pa.  587,  46  Atl.  839  (1900). 

As  to  who  are  included  within  the  term  "local"  creditors,  see  Minor.  Con- 
flict of  Laws,  §  8. 

As  to  the  effect  of  a  voluntary  assignment  upon  vessels  on  the  high  seas  or 
in  foreign  waters,  see  Crapo  v.  Kelly,  16  Wall.  610.  21  L.  Ed.  430  (1872)  ; 
Moore  v.  Willett,  35  Barb.  (N.  Y.)  663  (1861)  ;  Koster  v.  Merritt,  32  Conn. 
246  (1864). 

If  real  estate  is  embraced  in  a  foreign  assignment,  title  will  pass  to  the 
assignee  only  under  a  deed  executed  in  conformity  with  the  law  of  the  situs. 
King  V.  Glass,  73  Iowa,  205,  34  N.  W.  820  (1887).  In  other  respects,  some 
courts  apply  the  rules  governing  assignments  of  personal  property.  Bentlev  v. 
Whittemore,  19  N.  .7.  Eq.  462,  97  Am.  Dec.  671  (1868)  ;  May  v.  First  Nat. 
Bank,  122  111.  551,  13  N.  E.  806  (1887)  ;  Memphis  Sav.  Bank  v.  Houcheus, 
115  Fed.  90,  52  C.  C.  A.  176  (1902).  Others  apply  the  lex  rei  sitae.  Osborn 
V.  Adams,  18  Pick.  (Mass.)  245  (1830)  ;  Loving  v.  Pairo,  10  Iowa,  282.  77 
Am.  Dec.  108  (1860)  ;  Van  AViukle  v.  Armstrong.  41  N.  J.  Eq.  402,  5  Atl.  449 
(1886);  Keane  v.  Chamberlain.  14  App.  D.  C.  84  (1899);  Manton  v.  J.  F. 
Seiberling  &  Co.,  107  Iowa,  534,  78  N.  W.  194  (1899). 


Ch.    1)  PROPERTY.  323 

who  then  deposited  them  with  the  London  &  Chartered  Bank  of 
Australia,  Thomas  &  Co.  were  thereupon  adjudicated  bankrupts. 
Immediately  after  the  bankruptcy  the  executors  broug-ht  an  action  in 
England  against  the  Colonial  Bank  and  the  trustee  in  bankruptcy  of 
Thomas  &  Co.,  claiming  a  declaration  that  the  deposit  of  the  share 
certificates  was  made  in  fraud  of  the  plaintiffs,  and  conferred  no  legal 
title  on  the  bank,  and  claiming  delivery  to  the  plaintiffs  of  the  certifi- 
cates. 

The  executors  also  brought  a  similar  action  against  the  London  & 
Chartered  Bank  of  Australia.     The  two  actions  were  heard  together.-^ 

LiNDLEY,  L.  J."®  *  *  *  First  of  all,  let  me  get  rid  of  the 
American  law,  and  I  will  point  out  before  I  have  done  to  what  extent 
that  applies  to  the  case.  As  I  understand  the  evidence  given  by  the 
American  lawyers,  if  this  transaction  had  taken  place  in  America  the 
banks  would  have  got  a  good  title  to  these  shares,  subject,  possibly, 
to  that  question  about  the  documents  not  being  in  order.  I  doubt  very 
much  whether  the  American  lawyers  would  have  attached  much  im- 
portance to  that,  and  I  shall  assume  throughout  my  judgment  that  if 
this  transaction  had  taken  place  in  America  the  banks  would  have  suc- 
ceededT  Now  the  American  law  is  important  up  to  a  certain  point  and 
not  beyond  that  point.  We  must  look  to  the  American  law  for  the  pur- 
pose of  understanding  the  constitution  of  this  company,  and  the  proper 
mode  of  becoming  a  shareholder  in  it  and  acquiring  shares  in  it. 
Further  than  that,  it  may  be  that  the  consequence  of  having-  acquired 
a  title  to  the  certificate  may  depend  on  American  law,  b_utjh£- quesr 
tion  how  a  title  is  to  be  acquired  to  a  certificate  by  a  transaction  in 
this, country ^oes  not  depend  on  American  law  at  all.  One  question, 
and  to  my  mind  the  main  question,  resolves  itself  into  this :  who  is 
entitled  to  the  certificate?  Now  the  certificate  has  been  dealt  with  in 
England,  and  it  has  been  dealt  with  by  the  executors  in  England,  and 
the  certificate  is  a  chattel — and  when  considering  who  is  entitled  to 
a  chatteLbought  or  sold  or  pledged  m  England,  it  is  English  law  and 
not  xA.merican  law  that  we  have  to  deal  with.-^     *     *     * 

25  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 

2  6  Only  a  part  of  the  opinion  of  Lindley,  L.  J.,  is  given.  Cotton  and  Bowen, 
L.  JJ.,  delivered  concurring  opinions. 

27  See  Black  v.  Zacharia,  3  How.  (U.  S.)  483,  11  L.  Ed.  690  (1844)  ;  Masury 
V.  Arkansas  Nat.  Bank  (C.  C.)  87  Fed.  381  (1898) :  London,  Paris  &  American 
Bank  v.  Aronstein,  117  Fed.  601,  54  C.  C.  A.  663  (1902). 

The  existence  of  a  lien  in  favor  of  a  corporation  upon  the  shares  of  its  capi- 
tal stock  will  depend  upon  the  law  of  the  state  creating  the  corporation.  Ham- 
mond v.  Hastings,  134  U.  S.  401,  10  Sup.  Ct  727,  33  L.  Ed.  960  (1890). 


I 


•Ai, 


324  PARTICULAR  SUBJECTS.  (Part  2 

In  re  QUEENSLAND  MERCANTILE  &  AGENCY  CO. 
(Chancery  Division,  1890,  1891.    60  L,  J.  Ch.  579,  1  Ch.  536.) 

Adjourned  summonses. 

The  first  summons  was  taken  out  by  the  Australasian  Investment 
Company,  who  thereby  asked  that  out  of  £24,730.  New  Consols, 
and  any  cash  in  the  hands  of  the  liquidator  in  the  English  winding-up 
of  the  Queensland  Mercantile  &  Agency  Company,  or  in  court,  repre- 
senting money  received  from  Scotch  shareholders  in  the  Queensland 
Company,  £12,660.  might  be  paid  to  the  Australasian  Company  in  prior- 
ity to  all  other  payments. 

The  other  summons  was  taken  out  by  the  Union  Bank  of  Australia, 
who  thereby  asked  that  the  English  liquidator  might  be  ordered  to 
transfer  to  the  Union  Bank  the  whole  of  the  New  Consols  and  cash 
standing  in  his  name,  representing  the  proceeds  of  calls  in  his  hands 
in  respect  of  shares  Nos.  1  to  2,500  in  the  Queensland  Company. 

The  facts  of  the  case  as  fully  stated  in  the  judgment  were  as  follows : 

The  Queensland  Mercantile  &  Agency  Company  was  registered  in 
Brisbane,  and  for  several  years  before  it  was  wound  up  carried  on 
business  in  Queensland.  The  bankers  of  the  company  were  the  Union 
Bank  of  Australia,  who,  on  the  28th  of  June  and  the  9th  of  September, 
1886,  took  from  the  Queensland  Company  two  debentures  for  £10,000. 
and  £50,000.  respectively  in  similar  form,  whereby  the  payment  of 
such  debentures  was  made  a  first  charge  on  the  uncalled  capital  re- 
ceivable in  respect  of  2,500  specified  shares  in  the  Queensland  Com- 
pany, upon  each  of  which  shares  £50.  had  been  paid  up,  and  £50.  more 
remained  uncalled. 

On  the  14th  of  December,  1886,  the  company  passed  resolutions 
calling  up  the  balance  of  £50.  per  share,  payable  by  four  equal  install- 
'ments  in  February,  April,  June,  and  August,  1887,  respectively.  No- 
tice of  the  call  was  given  to  the  shareholders;  but  they  never  had  any 
notice  of  the  charge  effected  by  the  said  two  debentures  in  favor  of 
the  Union  Bank. 

On  the  24th  of  February,  1887,  a  Scotch  company,  called  the  Aus- 
tralasian Investment  Company,  commenced  an  action  in  Scotland 
against  the  Queensland  Company  for  negligence,  and  immediately 
afterwards,  on  the  same  day,  issued  a  Scotch  process,  called  "arrest- 
ment on  the  dependence  of  the  action,"  against  numerous  holders  of 
the  Queensland  Company's  shares  who  were  resident  in  Scotland, 
the  effect  of  which,  shortly,  was  that  the  calls  payable  by  them  to  the 
Queensland  Company  were  arrested  in  their  hands,  and  the  Austral- 
asian Company  (the  pursuers  in  the  action)  became  secured  creditors 
on  the  funds  so  arrested  for  the  amounts  for  which  they  should  es- 
tablish their  claim  in  the  action. 

In  the  months  of  May,  July,  and  August,  1887,  judgments  were  re- 
covered  in  England  in  twenty-seven   actions   by   Drake   and   others 


Ch.   1)  PROPERTY.  325 

against  the  Queensland  Company.  On  the  2d  of  September,  1887, 
the  Union  Bank  commenced  an  action  in  England  against  the  Queens- 
land Company  in  respect  of  money  due  to  them  other  than  that  secured 
by  the  said  two  debentures ;  and  on  the  7th  of  September  an  order  was 
made  in  all  those  actions  for  the  appointment  of  a  receiver  to  get  in 
the  calls  from  the  shareholders  in  the  Queensland  Company. 

On  the  28th  of  October,  1887,  an  order  was  made  in  Queensland  for 
the  winding-up  of  the  Queensland  Company,  and  thereupon  the  £60,- 
000.  secured  by  the  two  debentures  above  mentioned  became  payable. 
On  the  14th  of  January,  1888,  a  similar  order  was  made  in  England. 
By  various  proceedings  and  orders  in  England  and  in  Scotland,  to 
which  it  is  not  necessary  to  refer  in  detail,  the  Australasian  Company 
were  restrained  from  further  prosecuting  their  action  in  Scotland,  but 
without  prejudice  to  the  security,  if  any,  upon  the  amounts  payable 
by  the  Scotch  shareholders  in  the  Queensland  Company  in  respect  of 
the  said  calls  which  the  Australasian  Company  had  acquired  by  the  pro- 
ceedings taken  by  them  in  Scotland;  and  the  official  liquidator  had 
received  from  the  receiver,  or  had  himself  collected,  and  held  on  sep- 
arate accounts,  the  amounts  paid  for  the  calls  by  the  Scotch  and  Eng- 
lish shareholders  respectively,  the  receipts  from  the  Scotch  sharehold- 
ers being  about  £24,730.,  which  sums  remained  to  be  distributed  among 
the  parties  entitled  thereto.  By  proceedings  in  the  winding-up  in 
Queensland  the  amount  due  from  the  Queensland  Company  to  the 
Australasian  Investment  Company  had  been  ascertained  at  £12,660. 
The  claim  of  the  Union  Bank  had  in  like  manner  been  ascertained  at 
upwards  of  £74,000. ;  but  it  was  admitted  that,  after  allowing  for  se- 
curities held  by  them,  their  claim  was  reduced  to,  in  round  figures, 
£31,000. ;  and  they  asked  for  an  order  upon  the  official  liquidator  to 
transfer  to  them  on  account  of  this  claim  the  sums  he  had  thus  re- 
ceived. The  Australasian  Company  claimed  on  the  other  hand  to  be 
first  paid  thereout  the  £12,660.  due  to  them,  the  balance  only  going  to. 
the  liquidator. 

The  plaintiffs  in  the  actions  of  Drake  and  others  against  the  Queens- 
land Company  also  asserted  a  claim  to  the  funds  in  hand  against  both 
the  Union  Bank  and  the  Australasian  Company. 

North,  J.  (on  October  28  and  29,  1890),  held  that  the  debentures 
issued  by  the  Queensland  Company  to  the  Union  Bank  created  a  valid 
charge  on  the  unpaid  calls  on  the  shareholders  in  the  Queensland 
Company,  and  that  they  consequently  took  precedence  of  the  judg- 
ment debts. 

As  to  the  question  whether  the  Australasian  Company  or  the  Union 
Bank  had  priority. 

Sir  Horace  Davey,  Q.  C,  Buckley,  O.  C,  and  S.  Dickinson,  for 
the  Union  Bank. — The  law  of  Scotland  on  the  question  now  in  dis- 
pute is  not  correctly  stated  in  the  affidavit  of  Mr.  Blair  filed  on  behalf 
of  the  Australasian  Company ;  but  in  any  event  that  law  is  irrelevant, 
for  the  law  of  Queensland,  which  is  the  same  as  the  law  of  England, 


326  PARTICULAR  SUBJECTS.  (Part  2 

is  the  governing  law,  being  the  law  of  the  domicile  of  the  Queensland 
Company,  which  is  the  creditor  in  respect  of  the  calls.  Hunter  v. 
Potts,  4  Term  Rep.  182 ;  Sill  v.  Worswick,  1  H.  Black.  665 ;  Simp- 
son V.  Fogo,  1  Hem.  &  M.  195,  32  Law  J.  Rep.  Chanc.  .249 ;  Colonial 
Bank  V.  Cady,  60  L.  J.  Ch.  131,  Law  Rep.  15  App.  Cas.  267;  and 
Story's  Conflict  of  Laws,  c.  9,  §  374.  The  English  law  gives  priority 
to  the  Union  Bank,  which  had  a  good  charge  on  the  calls  before  the 
Australasian  Company  came  into  question.  Eyre  v.  McDowell,  9  H. 
L.  Cas.  619 ;  In  re  General  Horticultural  Company,  Limited,  Ex  parte 
Whitehouse,  55  Law  J.  Rep.  Chanc.  608,  Law  Rep.  32  Ch.  D.  512; 
and  Badeley  v.  Consolidated  Bank,  57  Law  J.  Rep.  Chanc.  468,  Law 
Rep.  34  Ch.  D.  536,  38  Ch.  D.  238. 

Crackanthorpe,  Q.  C,  and  Rawlins,  for  the  Australasian  Company. 
— The  law  of  Scotland  ought  to  govern  this  case,  seeing  that  these 
are  Scotch  calls  and  that  the  necessary  steps  to  secure  a  charge  on 
these  calls  have  been  taken  in  Scotland.  •  What  the  Scotch  law  is, 
is  proved  by  the  uncontradicted  evidence  of  Mr.  Blair,  and  this  by 
virtue  of  the  arrestment  duly  intimated  to  the  Scotch  shareholders, 
gives  priority  to  the  Australasian  Company.  Arden  v.  Arden,  54 
Law  J.  Rep.  Chanc.  655,  Law  Rep.  29  Ch.  D.  702. 

Everitt,  Q.  C,  and  Swinfen  Eady,  for  the  judgment  creditors. 

Cozens-Hardy,  Q.  C,  and  Kenyon  Parker,  for  the  liquidator. 

Buckley,  Q.  C,  in  reply. 

Judgment  reserved. 

North,  J.  (on  January  14,  1891),  after  stating  the  facts  as  herein 
set  forth,  continued  as  follows:  It  is  obvious  that  the  charges  cre- 
ated by  the  debentures  and  by  the  Scotch  arrestment  are  both  to  be 
preferred  to  any  claim  by  the  mere  judgment  creditors  in  England 
of  the  Queensland  Company,  and  I  so  decided  on  the  hearing.  Th£_ 
claim  of  the  Australasian  Company  is  founded  upon  the  proposition 
that  by  the  law  of  Scotland  debts  are  assignable,  and  that  an  assign- 
ment of  a  debt  is  not  complete  or  operative  until  notice  or,  as  it  is 
called,  "intimation*'  thereof  is  given  to  the  debtor,  and  that. no  such 
intimation  of  the  Union  Bank  debentures  was  ever  given  before  the 
Australasian  Company  had  arrested  the  calls  in  question.  The  posi- 
tion of  the  company  is  stated  in  Mr.  Blair's  affidavit.  [His  Lordship 
here  read  several  passages  from  this  affidavit,  and  continued :] 

It  is  not  satisfactory  to  find  that  the  only  evidence  in  this  case 
of  the  Scotch  law  is  contained  in  an  affidavit  of  Mr.  Blair,  the  legal 
adviser  of  the  Australasian  Company,  and  that  although  there  is  no 
evidence  contradicting  it,  the  Union  Bank  state  that  they  will,  if 
necessary,  contend  before  the  House  of  Lords  that  such  affidavit 
lays  down  the  Scotch  law  incorrectly.  This  may  be  open  before  their 
Lordships  on  appeal,  but  it  is  not  open  before  me,  for  the  question 
of  Scotch  law  is  here  merely  a  question  of  fact,  upon  which  the  evi- 
dence is  all  one  way;  and  the  Union  Bank  have  not  asked  me  to  give 
them  any  opportunity  of  going  into  further  evidence,  or  to  send  a 


Ch,    1)  PROPERTY.  327 

case  for  the  opinion  of  the  Scotch  court.  By  sucji  evidence  i^  is  es- 
tabhshed  that  there  is,  by  virtue  of  the  arrestment,  what  is'  equivalent 
to  an  actual  assignment  of  the  calls  in  question  duly  intimated,  and 
that  this,  by  the  law  of  Scotland,  is  preferable  to,  and  has  priority 
over,  the  assignment  to  the  Union  Bank,  of  which,  though  prior  in 
time  to  the  arrestment,  no  intimation  had  been  given  at  the  date  when 
the  assignment  by  arrestment  became  complete ;  and  this  is  what  I 
feel  bound  to  decide.  It  was  contended  on  behalf  of  the  Union  Bank 
that  the  claim  of  the  Australasian  Companj^  could  only  be  valid  as 
against  "the  sums  attached,"  which  were  said  to  be  what  would  remain 
of  the  calls  after  satisfying  what  was  due  to  the  Union  Bank;  but 
this  is  quite  inconsistent  with  the  language  of  the  arrestment,  which 
applies  specifically  to  the  whole  sum  due  for  calls  from  each  of  the 
shareholders  on  whom  the  arrestment  is  served.  It  was  also  stated 
that  after  the  assignment  to  the  Union  Bank  all  that  the  Queensland 
Company  had  left  was  the  surplus  remaining  over  after  paying  the 
bank,  that  the  rest  of  the  calls  belonged  to  the  bank,  and  that  it  was 
contrary  to  principle  and  authority  to  hold  that  a  process  of  law 
against  the  debtors  could  affect  what  was  the  property  of  the  creditor, 
the  Union  Bank.  But  in  the  present  case  I  have  not  to  deal  with  a 
mere  process  of  law  such  as  a  judgment  or  garnishee  order,  but  with 
what  is  established  as  a  fact  to  be  equivalent  to  an  actual  assign- 
ment, and  which,  on  the  evidence,  I  must  treat  in  exactly  the  same 
way  as  if  such  an  assignment  had  been  actually  executed  and  inti- 
mated. 

But  the  Union  Bank  also  put  their  claim  to  priority  over  the  Aus- 
tralasian Company  in  another  way.  They  say  that,  whatever  the 
position  of  matters  might  have  been  if  all  the  parties  to  these  transac- 
tions had  been  domiciled  in  Scotland,  the  facts  are  not  so;  the 
Queensland  Company  was  a  creditor  in  respect  of  the  debts  due  from 
the  shareholders  for  calls;  that  company  was  domiciled  in  Queens- 
land, and,  therefore,  the  validity  of  the  assignments  by  them  to  the 
Union  Bank  depends  upon  the  law  of  Queensland,  and  not  on  the  law 
of  the  Scotch  debtor's  residence ;  that  by  the  law  of  Queensland 
(which  is  admitted  to  agree  with  that  of  England)  no  "intimation" 
was  necessary,  and  that  a  transfer  of  personal  or  movable  property, 
valid  by  thelaw  of  the  owner's  domicile,  is  valid  wherever  the  prop- 
erty may  be  situate.  They  rely  upon  the  principle  concisely  expressed 
in  the  iiiaxim  "Mobilia  sequuntur  personam,"  and  more  fully  stated  in 
numerous  authorities,  of  which  it  is  sufficient  that  I  should  refer  to 
one — namely,  the  judgment  of  Lord  Loughborough  in  Sill  v.  Wors- 
wock,  1  H.  Black.  665.  He  there  says:  "It  is  a  clear  proposition, 
not  only  of  the  law  of  England,  but  of  every  country  in  the  world 
where  law  has  the  semblance  of  science,  that  personal  property  has 
no  locality.  The  meaning  of  that  is,  not  that  personal  property  has 
no  visible  locality,  but  that  it  is  subject  to  that  law  which  governs 
the  person  of  the  owner.     With  respect  to  the  disposition  of  it,  with 


^;^i< 


328  PARTICULAR  SUBJECTS.  (Part  2 

respect  to  the  transmission  of  it,  either  by  succession  or  the  act  of 
the  party,  it  follows  the  law  of  the  person.  The  owner  in  any  country 
may  dispose  of  personal  property.  If  he  dies,  it  is  not  the  law  of  the 
country  in  which  the  property  is,  but  the  law  of  the  country  of 
which  he  was  a  subject  that  will  regulate  the  succession." 

In  my  view,  after  full  consideration,  it  is  not  now  necessary  for  me 
to  express  any  opinion  upon  this  interesting  and  difficult  question; 
for,  assuming  the  principle  above  stated  to  include  such  a  case  as  the 
1^         present,  there  is  another   equally  well  known   rule  of   law — namely, 
/^.  that  a  transfer  of  movable  property  duly  carried  out  according  to  the 

law  of  the  place  where  the  property  is  situated,  is  not  rendered  in- 
effectual by  shewing  thajTsuch  transfer  was  not  in  accordance  with 
-  1^  \-        what  would  Tdc  required  by  law  in  the  country  where  its  owner  is 
A  Vj^         domiciled.     To  give  an  instance,  according  to  Scotch  law  it  is  neces- 
"  ■  j^  f^  uV'*    ir^    sary,   in  order  to  create  a  charge  on  corporeal  movables,  that  they 
\/r^  I  At    j^  v         should  be  delivered  to,  and  placed  in  the  possession  of,  the  creditor. 
I^^J'l   i/^  But  if  a  domiciled  Scotchman,  resident  in  London,  gave  a  duly  regis- 

ff.    tpi         ^  tered  bill  of  sale  of  the  furniture  of  his  house,  this  would  be  a  com- 

tX^^/^W/JI  ^^         plete  and  effectual  transfer  of  the  property  without  its  being  delivered 
'"aJI  J^'    ^°  ^^^  creditor,  notwithstanding  that  such  a  disposition  of  furniture 

V^    i|^    *  'j.       I     in  Scotland  would  have  been  ineffectual  without  delivery.     To  apply 
I  jt^^     J^    this  to  the  present  case,  the  Queensland  Company  did  certain  acts 
C/^Ajy^    r^         of  commission  or  omission,  by  virtue  of  which  certain  legal   rights 
^^k\f^%   iA\^     arose  in  Scotland,  having  identically  the  same  effect  in  all  respects 
)^y^ ^  (according  to  the  evidence  before  me)  as  if  the  Queensland  Company 

VjT^  A.        (y        had,  on  the  date  of  the  arrestment,  executed  an  assignment  of  these 
^r      jr'    I  */*  ^^'^  i^  question  to  the  Australasian  Company,  and  such  assignment 
i  fl^^     V/^      Y^  ^^^  been  forthwith  intimated  to  the  persons  in  whose  hands  the  calls 
0^  •*•  were  arrested.    Such  an  assignment  would,  according  to  the  evidence, 

Oj/f^        J^  clearly  have  been  preferred  to  another  assignment,  bearing,  indeed, 

^-j^r  .  an  earlier  date,  but  not  yet  completed  by  intimation;   and,  in  my  opin- 

CyC/'  ^  -^(tj*/  ion,  the  right  of  those  who  have  acquired  an   unexceptionable  title 

fJ^  to,  and  have  recovered,  the  property  according  to  the  law  of  the  coun- 

/V^  /  "^P         try  where  it  is  found  and  arrested,  cannot  be  defeated  by  shewing  that 

/^   \jL^        f/"     if  the  property  had  been  elsewhere,  the  title  of  the  Union  Bank  might 
/^  |4>  .  have  been  the  preferable  one.     I  speak  of  the  Australasian  Company 

yji        \fr({         '*   ^^  having  recovered  the  calls,   although  they  have,  as  a  matter  of 
tT^     *.         "  O        convenience,   been    received   by   the   official   liquidator,   because   they 
•jy^      \j^  '  would  actually  have  received  them  if  the  action  had  not  been  stayed, 

(^  ^     ./^r*        \jf^      and  the  rights  of  the  parties  cannot  be  affected  by  the  court  having 
stayed  the  action,  as,  by  the  order  staying  it,  their  right  or  security 
was  expressly  left  unprejudiced. 
^K.  The  terms  of  the  order  will   require  some  care   in   dealing  with 

'J^  figures,  but  in  substance  I  accede  to  the  summons  of  the  Australa- 

jLr      ,  /  sian  Company,  and  only  direct  the  payment  of  the  balance  of  the  pro- 

\        **    '\y     ceeds  of  the  Scotch  calls  to  the  Union  Bank.    There  will  be  one  order 
on  both  summonses,  and  the  Australasian  Company  and  the  Union 


Ch.   1)  PROPERTY.  329 

Bank  will  add  their  costs  to  their  respective  securities.  The  official 
liquidator's  costs  must  be  retained  by  him  out  of  the  calls  he  has  re- 
ceived.^^ 


McSHANE  V.  KNOX. 
(Supreme  Court  of  Minnesota,  1908.     103  Minn.  268,  114  N.  W.  953.) 

Brown,  J.  This  action  was  brought  by  plaintiff,  a  resident  of 
North  Dakota,  against  defendant,  also  a  resident  of  that  state,  to  re- 
cover upon  a  promissory  note  theretofore  executed  by  him  to  one  EUis, 
and  by  Ellis  transferred  to  plaintiff".  At  the  time  of  its  commencement 
a  garnishee  summons  was  duly  issued  therein  against  the  Northern 
Pacific  Railway  Compan}^  a  corporation  organized  under  the  laws  of 
Wisconsin,  but  maintaining  an  agency  and  doing  business  in  this  state. 
The  summons  in  the  principal  action  was  personally  served  upon  the 
defendant  in  the  city  of  Moorhead,  this  state,  on  June  17,  1907,  to- 
gether with  a  copy  of  the  garnishee  summons,  with  the  usual  notice  to 
defendant  and  proof  of  service  upon  the  garnishee.  The  garnishee 
disclosed  an  indebtedness  to  defendant  in  the  sum  of  $140.10.  De- 
fendant made  no  appearance  in  the  action,  and  on  July  9,  1907,  default 
judgment  was  rendered  against  him  for  the  sum  of  $124.67,  There- 
after application  was  made  to  the  court  for  judgment  against  the 
garnishee  upon  its  disclosure,  on  which  defendant  appeared  specially 
and  for  the  purposes  of  the  motion  only,  and  moved  th£-CQurt  to  dis- 
miss  the  yarrikhmejii-prnrppdino-<;  on  the  ground  that,  as  all  the  partjes 
were  nonresidents  of  the  state,  the  court  had  no  jurisdic^n.  The 
motion  was  grantecTTand  plaintiff  appealed. 

It  is  contended  by  defendant,  in  support  of  the  order  appealed  from, 
that  the  case  comes  within  the  rule  of  Swedish-American  Bank  v. 
Bleecker,  72  Minn.  383,  75  N.  W.  740,  42  L.  R.  A.  283,  71  Am.  St. 

28  See  20  Harv.  Law  Rev.  637:  22  Am.  &  Eng.  Encyc.  (2d  Ed.)  1343;  4  Cvc. 
63 ;  Dicey,  Conflict  of  Laws,  522-,525 ;  Westlake,  Priv.  Int.  Law,  196-198 ; 
Foote,  Priv.  Int.  Jurispr.  261-264 ;  Minor,  Conflict  of  Laws,  §  122 ;  Story,  Con- 
flict of  Laws,  §§  395-399.  As  to  assignment  of  an  insurance  policy,  see  63  L. 
R.  A.  858-861. 

CoNTiNENTAX  Law. — As  between  ttie  assignor  and  assignee,  the  assignment 
of  a  debt  is  govei-ned  by  the  ordinary  principles  relating  to  contracts.  Ger- 
many,  R.  G.  Jan.  29,  1901  (12  Niemeyer,  113);  O.  L.  G.  Frankfurt  (on  the 
Main),  ISIarch  4.  1892  (21  Clunet.  150) ;  R.  G.  Dec.  3,  1891  (2  Niemeyer,  162). 
Italu.  Cass.  Rome,  Nov.  7,  1894  (S.  1895,  4.  13)  ;  App.  A'enice,  March  12,  1903, 
Annali  1903,  2,  261).  But  as  to  third  parties  and  the  debtor  himself,  the  lex 
domicilii  of  the  debtor  or  the  lex  solutionis  of  his  obligation  controls.  Ger- 
manij.  14  R.  G.  235  (Nov.  13,  1885) ;  39  R.  G.  371  (March  23,  1897)  ;  R.  G.  March 
19,  1907  (18  Niemeyer,  174);  O.  L.  G.  Hamburg.  Dec.  15,  1900  (56  Seuffert's 
Archiv,  260) ;  O.  L.  G.  Hamm,  Jan.  29,  1906  (34  Clunet,  775) ;  R.  G.  June  2, 
1908  (18  Niemej-er,  449).  For  a  contrary  holding  with  regard  to  the  case  last 
cited,  see  France.  Trib.  Civ.  Seine,  Mch.  15,  1907  (4  Darras,  182).  Itali/,  Cass. 
Rome,  Nov.  7,  1894  (S.  1895,  4,  13). 

See,  also,  F.  Sui-ville,  La  cession  et  la  mise  en  gage  des  creances  en  droit 
international  prive,  24  Clunet,  671-689. 


330 


PARTICULAR  SUBJECTS. 


(Part  2 


Rep.  492,  and  McKinney  v.  Mills,  80  Minn.  478,  83  N.  W.  452,  81 
Am.  St.  Rep.  278,  and  should  be  affirmed,  for  the  reason  that  all  the 
parties — plaintiff,  defendant,  and  garnishee — are  nonresidents  of  this 
state ;  that  the  indebtedness  sought  to  be  reached  by  the  garnishee  pro- 
ceedings was  not  payable  in  this  state,  but  in  North  Dakota,  where 
defendant  was  in  the  employ  of  the  railway  company,  and  did  not 
arise  out  of  a  transaction  occurring  in  this  state ;  hence  that  the  court 
had  no  jurisdiction.  The  contentiaajsjiot^sound.  The  cases  referred 
to  are  not  here  in  point.  Much  has  been  said  and  written  on  the  sub- 
ject of  the  jurisdiction  of  the  courts  in  garnishment  proceedings  against 
nonresident  parties,  particularly  in  actions  where  the  property  sought 
to  be  reached  is  in  the  form  of  an  indebtedness  due  the  defendant  from 
the  garnishee.  Many  of  the  courts  maintain  with  plausible  argument 
that  for  the  purposes  of  garnishment  the  situs  of  intangible  property, 
such  as  debts,-  is  at  the  domicile  of  the  debtor,  and  may  be  attached 
wherever  he  may  be  found,  whether  in  the  state  of  his  actual  residence 
or  elsewhere ;  while  other  courts  of  equal  prominence,  and  with"  equal 
force  and  earnestness,  insist  that  the  debt  has  its  situs  with  the 
creditor,  and  cannot  be  reached  by  garnishment  proceedings,  except 
in  the  state  of  his  residence.  The  avithorities  are  collected  and  re- 
viewed in  a  note  to  Goodwin  v.  Claytor,  137  N.  C.  224,  49  S.  E.  173, 
67  L.  R.  A.  209,  107  Am.  St.  Rep.  479 ;  7  Current  Law,  1868.  It  is 
unnecessary  to  review  them  in  this  case,  for  the  question  is  not  here 
presented.  They  are  all  rasp-s^^mhere-no  per-ftonal  service  of  the  sum.- 
mons  was  made  upon  the  principal_defendant  in_tlie  state  where  the 
action  was  brought,  andjia^^fe-actibns  or  proceedings  in^rern,  pure  and 
simple.  In  actions  ofthat  natup£T--tllgJuiisdigtion  of  the  court  extends 
only  to  the  res^^thF^^pney  Qr.^^rop£rty-4ft-the  hands.,oflHegarnishee, 
and  the  court  has  no  authoritv  to  jtreeeed-iinlea^ the  subject-matter, 
by  proper  service  oTprocess,  is  brought  within  the  control  of  the  court. 
But  we  hav£  found  no  case  wherein TThas  been  held  tliat  the  court  is 
without  jurisdiction,  though  it  appear  that  all  the  parties  are  nonresi- 
dents  of  the  state,  where  the  summ.ons_was  personally  served  upon  the 
principaL.defendantT'as  wella^jjponjhe  garnishee,  in  the  state  where 
the  action^^as_  broilght.  Irrthe~case  aF  bar,  while  the  nonresidence  of 
the  parties  is  concedea,  it  appears  that  botli_the  summons  in  the  prin- 
cipal  artinnjnd  alsojtlie^^garnishee  summons,  with  notice  to  defendant, 
were  personally  served  uiKm_d£fendaDt  while_within_thestate.  and,  fur- 
ther, that  the  garnishee,  a  Wisconsin  corporation,  is  permanently  engag- 
ed  in  conductmg-4ts-iTns45g5sIiii_Uiis_sfat^  with  an  agency  herein,  and 
that  the  garnishee  summons  was  served  upon  it  in  the  manner  required 
by  law.  Such  facts  take  the  case  without  the  rule  of  any  of  the  cases  re- 
ferred to.  The  jurisdiction  of  the  court  in  a  case  where  personal  serv- 
ice is  had  within  the  state  is  not,  strictly  speaking,  in  rem,  but  in  per- 
sonam, and  whether  the  situs  of  the  debt  be  with  the  creditor,  at  his 
domicile,  or  with  the  debtor,  the  debt  in  question  in  this  action  had  a 
situs  in  this  state  within  all  of  the  decisions;  for  both  creditor,  and 


Ch.    1)  PROPERTY.  331 

debtor  were  found  within  the  borders  thereof,  and  were  therein  per- 
sonally served  with  process  in  the  action.  There  can  be  no  doubt  of  the 
full  and  complete  jurisdiction  of  the  court  in  such  case.  Commercial 
Bank  of  Chicago  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  45  Wis.  172 ;  East 
Tennessee,  V.  &  G.  Ry.  Co.  v.  Kennedy,  83  Ala.  462,  3  South.  852, 
3  Am.  St.  Rep.  755 ;  Louisville  &  N.  Ry.  Co.  v.  Nash,  118  Ala.  477,  23 
South.  825,  41  L.  R.  A.  331,  72  Am.  St.  Rep.  181 ;  Young  v.  Ross,  31 
N.  H.  201 ;  Harris  v.  Balk,  198  U.  S.  215,  25  Sup.  Ct.  625,  49  L.  Ed. 
1023 ;  Louisville  &  N.  Ry.  Co.  v.  Deer,  200  U.  S.  176,  26  Sup.  Ct.  207, 
50  L.  Ed.  42G ;  1  Shinn  on  Garnishment,  §  5. 

There  is  no  suggestion  that  defendant  was  fraudulently  induced  to 
come  within  the  state,  to  the  end  that  the  summons  might  be  personal- 
ly served  upon  him ;  and  the  rule  laid  down  in  Chubbuck  v.  Cleveland, 
37  Minn.  466,  35  N.  W.  362,  5  Am.  St.  Rep.  864,  does  not  apply.  The 
place  of  payment  of  the  debt,  if  it  be  conceded  that  it  sufficiently  ap- 
pears in  this  case  that  it  was  payable  in  North  Dakota,  is  not  impor- 
tant ;  for  the  garnishee  makes  no  claim  that  it  cannot  be  compelled  to 
make  payment  elsewhere  than  at  the  place  agreed  upon  with  the  cred- 
itor. Krafve  v.  Roy  &  Roy,  98  Minn.-  142,  107  N.  W.  966,  116  Am. 
St.  Rep.  346;, Harvey  v.  Great  Northern  Ry.  Co.,  50  Minn.  405,  52 
N.  W.  905,  17  L.  R.  A.  84.  Nor  is  it  material  that  plaintiff  is  a  non- 
resident of  this  state.  He  had  an  undoubted  right  to  bring  his  action  in 
the  courts  of  this  state,  under  the  clause  of  the  federal  Constitution 
guaranteeing  to  the  citizens  of  each  state  all  the  rights  and  privileges  of 
citizens  of  the  several  states.  1  Shinn  on  Garnishment,  §  76.  The 
statement  in  McKinney  v.  Mills,  supra,  that  garnishment  proceedings 
should  in  all  cases  be  dismissed  where  it  appears  that  all  the  parties  are 
nonresidents  of  the  state,  was  not  intended  to  apply  to  cases  where  per- 
sonal service  was  made  upon  both  defendant  and  garnishee  within  the 
state.  The  learned  trial  court  apparently  relied  upon  the  language  of 
that  decision  in  dismissing  the  proceedings ;  but  there  was  no  personal 
service  in  that  case,  and  the  proceeding  was  one  strictly  in  rem.  In 
the  case  at  bar  there  was  personal  service  both  upon  defendant  and 
the  garnishee,  and  the  case  referred  to  is  not  in  point. 

The  order  appealed  from  is  reversed. 


HARRIS  V.  BALK. 

(Supreme  Court  of  the  United  States,  1905.    198  U.  S.  215,  25  Sup.  Ct.  625,  49 

L.  Ed.  1023.) 

Statement  by  Mr.  Justice  Peckham  : 

The  plaintiff  in  error  brings  the  case  here  in  order  to  review  the 
judgment  of  the  Supreme  Court  of  North  Carolina,  affirming  a  judg- 
ment of  a  lower  court  against  him  for  $180,  with  interest,  as  stated 
therein.  The  case  has  been  several  times  before  the  Supreme  Court 
of  that  state,  and  is  reported  in  Balk  v.  Harris,  122  N.  C.  64,  30  S.  E. 


332  PARTICULAR  SUBJECTS.  (Part  2 

318,  45  L.  R.  A.  257,  and  in  124  N.  C.  467,  32  S.  E.  799,  45  L.  R.  A. 
257,  70  Am.  St.  Rep.  606.  The  opinion  delivered  at  the  time  of  en- 
tering the  judgment  now  under  review  is  to  be  found  in  130  N.  C.  381, 
41  S.  E.  940.    See,  also,  133  N.  C.  10,  43  S.  E.  477. 

The  facts  are  as  follows :  The  plaintiff  in  error,  Harris,  was  a  resi- 
dent of  North  Carolina  at  the  time  of  the  commencement  of  this  ac- 
tion, in  1896,  and  prior  to  that  time  was  indebted  to  the  defendant  in 
error,  Balk,  also  a  resident  of  North  Carolina,  in  the  sum  of  $180,  for 
money  borrowed  from  Balk  by  Harris  during  the  year  1896,  which 
Harris  verbaHy  promised  to  repay,  but  there  was  no  written  evidence 
of  the  obligation.  During  the  year  above  mentioned  one  Jacob  Ep- 
stein, a  resident  of  Baltimore,  in  the  state  of  Maryland,  asserted  that 
Balk  was  indebted  to  him  in  the  sum  of  over  $300.  In  August,  1896, 
Harris  visited  Baltimore  for  the  purpose  of  purchasing  merchandise, 
and  while  he  was  in  that  city  temporarily  on  August  6,  1896,  Epstein 
caused  to  be  issued  out  of  a  proper  court  in  Baltimore  a  foreign  or  non- 
resident writ  of  attachment  against  Balk,  attaching  the  debt  due  Balk 
from  Harris,  which  writ  the  sheriff  at  Baltimore  laid  in  the  hands  of 
Harris,  with  a  summons  to  appear  in  the  court  at  a  day  named.  With 
that  attachment,  a  writ  of  summons  and  a  short  declaration  against 
Balk  (as  provided  by  the  Maryland  statute)  were  also  delivered  to 
the  sheriff,  and  by  him  set  up  at  the  courthouse  door,  as  required  by 
the  law  of  Maryland.  Before  the  return  day  of  the  attachment  writ 
Harris  left  Baltimore,  and  returned  to  his  home  in  North  Carolina. 
He  did  not  contest  the  garnishee  process,  which  was  issued  to  garnish 
the  debt  which  Harris  owed  Balk.  After  his  return  Harris  made  an 
affidavit  on  August  11,  1896,  that  he  owed  Balk  $180,  and  stated  that 
the  amount  had  been  attached  by  Epstein,  of  Baltimore,  and  by  his 
counsel  in  the  Maryland  proceeding  Harris  consented  therein  to  an  or- 
der of  condemnation  against  him  as  such  garnishee  for  $180,  the 
amount  of  his  debt  to  Balk.  Judgment  was  thereafter  entered  against 
the  garnishee,  and  in  favor  of  the  plaintiff,  Epstein,  for  $180.  After 
the  entry  of  the  garnishee  judgment,  condemning  the  $180  in  the  hands 
of  the  garnishee,  Harris  paid  the  amount  of  the  judgment  to  one  War- 
ren, an  attorney  of  Epstein,  residing  in  North  Carolina.  On  August 
11,  1896,  Balk  commenced  an  action  against  Harris  before  a  justice  of 
the  peace  in  North  Carolina,  to  recover  the  $180  which  he  averred  Har- 
ris owed  him.  The  plaintiff  in  error,  by  way  of  answer  to  the  suit, 
pleaded  in  bar  the  recovery  of  the  Marylan'd  judgment  and  his  pay- 
ment thereof,  and  contended  that  it  was  conclusive  against  the  defend- 
ant in  error  in  this  action,  because  that  judgment  was  a  valid  judgment 
in  Maryland,  and  was  therefore  entitled  to  full  faith  and  credit  in  the 
courts  of  North  Carolina.  This  contention  was  not  allowed  by  the 
trial  court,  and  judgment  was  accordingly  entered  against  Harris  for 
the  amount  of  his  indebtedness  to  Balk,  and  that  judgment  was  affirm- 
ed by  the  Supreme  Court  of  North  Carolina.  The  ground  of  such 
judgment  was  that  the  Maryland  court  obtained  no  jurisdiction  to  at-* 


Ch.    1)  PROPERTY.  333 

tach  or  garnish  the  debt  due  from  Harris  to  Balk,  because  Harris  was 
but  temporarily  in  the  state,  and  the  situs  of  the  debt  was  in  North 
Carolina. 

Peckham,  J.  The  state  court  of  North  Carolina  has  refused  to 
give  any  effect  in  this  action  to  the  Maryland  judgment;  and  the  fed- 
eral question  is  whether  it  did  not  thereby  refuse  the  full  faith  and 
credit  to  such  judgment  which  is  required  by  the  federal  Constitution. 
If  the  Maryland  court  had  jurisdiction  to  award  it,  the  judgment  is 
valid  and  entitled  to  the  same  full  faith  and  credit  in  North  Carolina 
that  it  has  in  Maryland  as  a  valid  domestic  judgment. 

The  defendant  in  error  contends  that  the  Maryland  court  obtain- 
ed no  jurisdiction  to  award  the  judgment  of  condemnation,  because 
the  garnishee,  although  at  the  time  in  the  state  of  Maryland,  and 
personally  served  with  process  therein,  was  a  nonresident  of  that  state, 
only  casually  or  temporarily  within  its  boundaries ;  that  the  situs  of  the 
debt  due  from  Harris,  the  garnishee,  to  the  defendant  in  error  herein, 
was  in  North  Carolina,  and  did  not  accompany  Harris  to  Maryland; 
that,  consequently  Harris,  though  within  the  state  of  Maryland,  had 
not  possession  of  any  property  of  Balk,  and  the  Maryland  state  cOurt 
therefore  obtained  no  jurisdiction  over  any  property  of  Balk  in  the  at- 
tachment proceedings,  and  the  consent  of  Harris  to  the  entry  of  the 
judgment  was  immaterial.  The  plaintiff  in  error,  on  the  contrary,  in- 
sists that,  though  the  garnishee  were  but  temporarily  in  Maryland,  yet 
the  laws  of  that  state  provide  for  an  attachment  of  this  nature  if  the 
debtor,  the  garnishee,  is  found  in  the  state,  and  the  court  obtains  juris- 
diction over  him  by  the  service  of  process  therein;  that  the  judgment, 
condemning  the  debt  from  Harris  to  Balk,  was  a  valid  judgment,  pro- 
vided Balk  could  himself  have  sued  Harris  for  the  debt  in  Maryland. 
This,  it  is  asserted,  he  could  have  done,  and  the  judgment  was  therefore 
entitled  to  full  faith  and  credit  in  the  courts  of  North  Carolina. 

The  cases  holding  that  the  state  court  obtains  no  jurisdiction  over  the 
garnisheeit  he  be"  buF  temporarily  within  the  state  proceed  upon  the 
theorv  thaTThF^us^i  the  ^bt^sjtlhe  domicile  either  of  the  credjlor. 
or  (JfTEe  debtor,  and  thatJLdoes  not  follow  the  debtor  in  his  casual  or 
temporary  journey  into  another  state,  and  the  garnishee  has  no  pos-, 
session^f  anyl)rope"rt>r^]a^ediFof  the~pniicipal  d^^^"^^  Jit  ^^^^""  fnrpign 
state.' 

We  regard  the  contention  of  the  plaintiff  in  error  as  the  correct  one. 
The  authorities  in  the  various  state  courts  upon  this  question  are  not 
at  all  in  harmony.  They  have  been  collected  by  counsel,  and  will  be 
found  in  their  respective  briefs,  and  it  is  not  necessary  to  here  en- 
large upon  them. 

Attachment  is  the_creature  of  the  local  law;  that  is,  unless  there  is 
a  law  of  the  state  providing  for  and  permitting  thgiTtLLadiiiienTTTt  caii- 
not  be  levied  there.  If  there  be  a  iaw_Qi-th€~state-pmviding  foiLj:he 
attachment  oT  the  debt,  then,  if  the  garnishee  be_found  in  that  state, 
and  process  bFpersonally  sgrmjjjpon  him  thprfin,  we  thin&  tHe  court 


334  PARTICULAR  SUBJECTS.  (Part  2 

thereby  acquires  jurisdiction  overJiinv-arul^can  garnish  the  debt  due 
from^titrriXTttg^'b^EoFpT  the  plaintiff,  and_condemn_it^  provided  the 
garnishee  coiTidJhmisH^^  snprljjy  his  creditor  in  that_siate.  We  do 
not  seeriiow  the  question  of  jurisdiction  vel  non  can  properly  be  made 
to  depend  upon  the  so-called  original  situs  of  the  debt,  or  upon  the 
character  of  the  stay  of  the  garnishee,  whether  temporary  or  perma- 
nent, in  the  state  where  the  attachment  is  issued.  Power_oyer_jthe 
ppT-gnn  of  t]-)p  o-^rnigVieeconfers  jurisdiction  on  the  courts^  ofjhe  stati 
where  the  writ  issues^  Blackstone  v.  MiHerTlSS  U.  S.  189-206,  23 
SuprGtr2T7',  47  C'Ed.  439-445.  If,  while  temporarily  there,  his  cred- 
itor might  sue  him  there  and  recover  the  debt,  then  he  is  liable  to  pro- 
cess of  garnishment,  no  matter  where  the  situs  of  the  debt  was  origi- 
nally. We  do  not  see  the  materiality  of  the  expression  "situs  of  the 
debt,"  when  used  in  connection  with  attachment  proceedings.  If  by 
situs  is  meant  the  place  of  the  creation  of  the  debt,  that  fact  is  imma- 
terial. If  it  be  meant  that  the  obligation  to  pay  the  debt  can  only  be 
enforced  at  the  situs  thus  fixed,  we  think  it  plainly  untrue.  The  ob- 
ligation of  the  debtor  to  pay  his  debt  clings  to  and  accompanies  him 
wherever  he  goes.  He  is  as  much  bound  to  pay  his  debt  in  a  foreign 
state  when  therein  sued  upon  his  obligation  by  his  creditor,  as  he  was 
in  the  state  where  the  debt  was  contracted.  We  speak  of  ordinary 
debts,  such  as  the  one  in  this  case.  It  would  be  no  defense  to  such 
suit  for  the  debtor  to  plead  that  he  was  only  in  the  foreign  state  casual- 
ly or  temporarily.  His  obligation  to  pay  would  be  the  same  whether  he 
was  there  in  that  way  or  with  an  intention  to  remain.  It  is  nothing 
but  the  obligation  to  pay  which  is  garnished  or  attached.  This  obliga- 
tion can  be  enforced  by  the  courts  of  the  foreign  state  after  personal 
service  of  process  therein,  just  as  well  as  by  the  courts  of  the  domicile 
of  the  debtor.  If  the  debtor  leave  the  foreign  state  without  appearing, 
a  judgment  by  default  may  be  entered,  upon  which  execution  may  is- 
sue, or  the  judgment  may  be  sued  upon  in  any  other  state  where  the 
debtor  might  be  found.  In  such  case  the  situs  is  unimportant.  It  is 
not  a  question  of  possession  in  the  foreign  state,  for  possession  cannot 
be  taken  of  a  debt  or  of  the  obligation  to  pay  it,  as  tangible  property 
might  be  taken  possession  of.  Notice  to  the  debtor  (garnishee)  of  the 
commencement  of  the  suit,  and  notice  not  to  pay  to  his  creditor,  is  all 
that  can  be  given,  whether  the  garnishee  be  a  mere  casual  and  tem- 
porary comer,  or  a  resident  of  the  state  where  the  attachment  is  laid. 
His  obligation  to  pay  to  his  creditor  is  thereby  arrested,  and  a  lien 
created  upon  the  debt  itself.  Gaboon  v.  Morgan,  38  Vt.  234,  236; 
National  Fire  Ins.  Co.  v.  Chambers,  53  N.  J.  Eq.  468,  483,  32  Atl.  663. 
We  can  see  no  reason  why  the  attachment  could  not  be  thus  laid,  pro- 
vided the  creditor  of  the  garnishee  could  himself  sue  in  that  state,  and 
its  laws  permitted  the  attachment. 

/  There  can  be  no  doubt  that  Balk,  as  a  citizen  of  the  state  of  North 
/Carolina,  had  the  right  to  sue  Harris  in  Maryland  to  recover  the  debt 
I  wliich  Harris  owed  him.     Being  a  citizen  of  North  Carolina,  he  was 


Ch,  1)  PROPERTY.  335 

entitled  to  all  the  privileges  and  immunities  of  citizens  of  the  several 
states,  one  of  which  is  the  right  to  institute  actions  in  the  courts  of  an- 
other state.  The  law  of  Maryland  provides  for  the  attachment  of  cred- 
its in  a  case  like  this.  See  sections  8  and  10  of  article  9  of  the  Code  of 
Public  General  Laws  of  Maryland,  which  provide  that,  upon  the  proper 
facts  being  shown  (as  stated  in  the  article),  the  attachment  may  be 
sued  out  against  lands,  tenements,  goods,  and  credits  of  the  debtor. 
Section  10  particularly  provides  that  "any  kind  of  property  or  credits 
belonging  to  the  defendant,  in  the  plaintiff's  own  hands,  or  in  the  hands 
of  any  one  else,  may  be  attached ;  and  credits  may  be  attached  which 
shall  not  then  be  due."  Sections  11,  12,  and  13  of  the  above-mentioned 
article  provide  the  general  practice  for  levying  the  attachment,  and  the 
proceedings  subsequent  thereto.  Where  money  or  credits  are  attached, 
the  inchoate  lien  attaches  to  the  fund  or  credits  when  the  attachment 
is  laid  in  the  hands  of  the  garnishee,  and  the  judgment  condemning  the 
amount  in  his  hands  becomes  a  personal  judgment  against  him.  Busch- 
man  v.  Hanna,  72  Md.  1,  5,  6,  18  Atl.  962.  Section  34  of  the  same 
Maryland  Code  provides  also  that  this  judgment  of  condemnation 
against  the  garnishee,  or  payment  by  him  of  such  judgment,  is  plead- 
able in  bar  to  an  action  brought  against  him  by  the  defendant  in  the 
attachment  suit  for  or  concerning  the  property  or  credits  so  condemned. 
It  thus  appears  that  Balk  could  have  sued  Harris  in  Maryland  to  re- 
cover his  debt,  notwithstanding  the  temporary  character  of  Harris'  stay 
there;  it  also  appears  that  the  municipal  law  of  Maryland  permits  the 
debtor  of  the  principal  debtor  to  be  garnished,  an drTliere fore  if  ttie 
court  of  th_e_5tate  where  the  garnishee  is  fquM  obtains  juriMicHon 
over  him,  through  the  service  of  process  upon  him  within  the"  "state, 
then  the^T^^P^^P-^^^^^^^^*^  is_ajvalid  judgmegt  SeeTMinor  on  Conflict 
of  Laws,  §  125,  where  the  various  theories  regarding  the  subject  are 
stated  and  many  of  the  authorities  cited.  He  there  cites  many  cases 
to  prove  the  correctness  of  the  theory  of  the  validity  of  the  judgment 
where  the  municipal  law  permits  the  debtor  to  be  garnished,  although 
his  being  within  the  state  is  but  temporary.  See  pages  289,  290.  This 
is  the  doctrine  which  is  also  adopted  in  Morgan  v.  Neville,  74  Pa.  52,  by 
the  supreme  court  of  Pennsylvania,  per  Agnew,  J.,  in  delivering  the 
opinion  of  that  court.  The  same  principle  is  held  in  Wyeth  Hardware 
&  Mfg.  Co.  v.  H.  F.  Lang  &  Co.,  127  Mo.  242,  247,  29  S.  W.  1010.  27 
L.  R.  A.  651,  48  Am.  St.  Rep.  626,  in  Lancashire  Ins.  Co.  v.  Corbetts, 
165  111.  592,  46  N.  E.  631,  36  L.  R.  A.  640,  56  Am.  St.  Rep.  275,  and  in 
Harvey  v.  Great  Northern  R.  Co.,  50  Minn.  405,  406,  407,  52  N.  W. 
905,  17  L.  R.  A.  84;  and  to  the  same  effect  is  Embree  v.  Hanna,  5 
Johns.  (N.  Y.)  101;  also  Savin  v.  Bond,  57  Md.  228,  where  the  court 
held  that  the  attachment  was  properly  served  upon  a  party  in  the  Dis- 
trict of  Columbia  while  he  was  temporarily  there ;  that  as  his  debt  to 
the  appellant  was  payable  wherever  he  was  found,  and  process  had 
been  served  upon  him  in  the  District  of  Columbia,  the  Supreme  Court 
of  the  District  had  unquestioned  jurisdiction  to  render  judgment,  and 


336  PARTICULAR  SUBJECTS.  (Part  2 

the  same  having  been  paid,  there  was  no  error  in  granting  the  prayer 
of  the  appellee  that  such  judgment  was  conclusive.  The  case  in  138 
N.  Y.  209,  33  N.  E.  938,  20  L.  R.  A.  118,  34  Am.  St.  Rep.  448  (Doug- 
lass V.  Phcenix  Ins.  Co.),  is  not  contrary  to  this  doctrine.  The  ques- 
tion there  was  not  as  to  the  temporary  character  of  the  presence  of  the 
garnishee  in  the  state  of  Massachusetts,  but,  as  the  garnishee  was  a 
foreign  corporation,  it  was  held  that  it  was  not  within  the  state  of  Mas- 
sachusetts so  as  to  be  liable  to  attachment  by  the  service  upon  an  agent 
of  the  company  within  that  state.  The  general  principle  laid  down  in 
Embree  v.  Hanna,  5  Johns.  (N.  Y.)  110,  was  recognized  as  correct. 
There  are,  as  we  have  said,  authorities  to  the  contrary,  and  they  can- 
not be  reconciled. 

It  seems  to  us,  however,  that  the  principle  decided  in  Chicago,  R.  I. 
&  P.  R.  Co.  v.  Stumi,  174  U.  S.  710,  19  Sup.  Ct.  797,  43  L.  Ed.  1144, 
recognizes  the  jurisdiction,  although  in  that  case  it  appears  that  the 
presence  of  the  garnishee  was  not  merely  a  temporary  one  in  the  state 
where  the  process  was  served.  In  that  case  it  was  said :  "  'All  debts 
are  payable  everywhere  unless  there  be  some  special  limitation  or  pro- 
vision in  respect  to  the  payment;  the  rule  being  that  debts,  as  such, 
have  no  locus  or  situs,  but  accompany  the  creditor  everywhere,  and  au- 
thorize a  demand  upon  the  debtor  everywhere.'  2  Parsons,  Contracts, 
8th  ed.  702  [9th  ed.  739].    The  debt  mvolved  in  the  pending  case  had 

no  'special  limitation  or  provision  m  respect  to  payment^ It  was^y- 

able  generally,  and  could  have^beeh  sued  on  in  Iowa,  and  therefore  was 
attachable  in  Iowa.  This  is  the  principle  and  effect  of  theJbe5t_CQ.n- 
sidered  cases — ^fhe  inevitable  effect  fromr^he  nature  of  transil:QEX_ac- 
tions  and  the  purpose  of  forei^_attachmentUaws,  if_we_jwould__gn- 
force  that  mimose.'^  The  case  recognizes  the  right  of  the  creditor  to 
sue  in  the  state  where  the  debtor  may  be  found,  even  if  but  temporarily 
there ;  and  upon  that  right  is  built  the  further  right  of  the  creditor  to 
attach  the  debt  owing  by  the  garnishee  to  his  creditor.  The  impor- 
tance of  the  fact  of  the  right  of  the  original  creditor  to  sue  his  debtor  in 
the  foreign  state,  as  affecting  the  right  of  the  creditor  of  that  creditor 
to  sue  the  debtor  or  garnishee,  lies  in  the  nature  of  the  attachment  pro- 
ceeding. The  plaintiff  in  such  proceeding  in  the  foreign  state  is  able 
to  sue  out  the  attachment  and  attach  the  debt  due  from  the  garnishee 
to  his  (the  garnishee's)  creditor,  because  of  the  fact  that  the  plaintiff 
is  really,  in  such  proceeding,  a  representative  of  the  creditor  of  the  gar- 
nishee, and  therefore  if  such  creditor  himself  had  the  right  to  com- 
mence suit  to  recover  the  debt  in  the  foreign  state,  his  representative 
has  the  same  right,  as  representing  him,  and  may  garnish  or  attach  the 
debt,  provided  the  municipal  law  of  the  state  where  the  attachment 
was  sued  out  permits  it. 

It  seems  to  us,  therefore,  that  the  judgment  against  Harris  in  Mary- 
land, condemning  the  $180  v^'hich  he  owed  to  Balk,  was  a  valid  judg- 
ment, because  the  court  had  jurisdiction  over  the  garnishee  by  per- 
sonal service  of  process  within  the  state  of  Maryland. 


J 


Ch.  1)  PROPERTY.  337 

It  ought  to  be  and  it  is  the  object  of  courts  to  prevent  the  payment 
of  any  debt  twice  over.  Thus,  if  Harris,  owing  a  debt  to  Balk,  paid  it 
under  a  valid  judgment  against  him,  to  Epstein,  he  certainly  ought 
not  to  be  compelled  to  pay  it  a  second  time,  but  should  have  the  right 
to  plead  his  payment  under  the  Maryland  judgment.  It  is^ objected, 
however,  that  the  payment  by  Harris  to  Epstein  was  not  under  legal 
compulsion.  HarfiTTnTruth  owed  the  deblrto'Balk,  whiclrvvas^attach^ 
ed  by~E^pstein.  He  had,  therefore,  as  we  have  seen,  no  defense  to  set 
up  against  the  attachment  of  the  debt.  Jurisdiction  over  him  personal- 
ly had  been  obtained  by  the  Maryland  court.  As  he  was  absolutely 
without  defense,  there  was  no  reason  why  he  should  not  consent  to  a 
judgment  impounding  the  debt,  which  judgment  the  plaintiff  was  legal- 
ly entitled  to,  and  which  he  could  not  prevent.  There  was  no  merely 
voluntary  payment  within  the  meaning  of"  that  phrase  as  applicable 
here. 

But  most  rights  may  be  lost  by  negligence,  and  if  the  garnishee  were 
guilty  of  negligence  in  the  attachment  proceeding,  to  the  damage  of 
Balk,  he  ought  not  to  be  permitted  to  set  up  the  judgment  as  a  defense. 
Thus  it  is  recognized  as  the  duty  of  the  garnishee  to  give  notice  to  his 
own  creditor,  if  he  would  protect  himself,  so  that  the  creditor  may 
have  the  opportunity  to  defend  himself  against  the  claim  of  the  per- 
son suing  out  the  attachment.  This  duty  is  afifirmed  in  the  case  above 
cited  of  Morgan  v.  Neville,  74  Pa,  53,  and  is  spoken  of  in  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Sturm,  174  U.  S.  710,  19  Sup.  Ct.  797,  43  L.  Ed. 
1144,  although  it  is  not  therein  actually  decided  to  be  necessary,  be- 
cause in  that  case  notice  was  given  and  defense  made.  While  the  want 
of  notification  by  the  garnishee  to  his  own  creditor  may  have  no  effect 
upon  the  validity  of  the  judgment  against  the  garnishee  (the  proper 
publication  being  made  by  the  plaintiff),  we  think  it  has  and  ought  to 
have  an  effect  upon  the  right  of  the  garnishee  to  avail  himself  of  the 
prior  judgment  and  his  payment  thereunder.  This  notification  by  the 
garnishee  is  for  the  purpose  of  making  sure  that  his  creditor  shall  have 
an  opportunity  to  defend  the  claim  made  against  him  in  the  attachment 
suit.  Fair  dealing  requires  this  at  the  hands  of  the  garnishee.  In  this 
case,  while  neither  the  defendant  nor  the  garnishee  appeared,  the  court, 
while  condemning  the  credits  attached,  could  not,  by  the  terms  of  the 
Maryland  statute,  issue  the  writ  of  execution  unless  the  plaintiff  gave 
bond  or  sufficient  security  before  the  court  awarding  the  execution,  to 
make  restitution  of  the  money  paid  if  the  defendant  should,  at  any  time 
within  a  year  and  a  day,  appear  in  the  action  and  show  that  the  plain- 
tiff's claim,  or  some  part  thereof,  was  not  due  to  the  plaintiff.  The  de- 
fendant in  error,  Balk,  had  notice  of  this  attachment,  certainly  within 
a  few  days  after  the  issuing  thereof  and  the  entry  of  judgment  there- 
on, because  he  sued  the  plaintiff  in  error  to  recover  his  debt  within  a 
few  days  after  his  (Harris')  return  to  North  Carolina,  in  which  suit 
the  judgment  in  Maryland  was  set  up  by  Harris  as  a  plea  in  bar  to 
Balk's  claim.  Balk,  therefore,  had  an  opportunity  for  a  year  and  a 
LoE.CoNF.L.— 22 


338 


PARTICULAR  SUBJECTS. 


(Part  2 


day  after  the  entry  of  the  judgment  to  litigate  the  question  of  his  lia- 
bility in  the  Maryland  court,  and  to  show  that  he  did  not  owe  the  debt, 
or  some  part  of  it,  as  was  claimed  by  Epstein.  He,  however,  took  no 
proceedings  to  that  end,  so  far  as  the  record  shows,  and  the  reason 
may  be  supposed  to  be  that  he  could  not  successfully  defend  the  claim, 
because  he  admitted  in  this  case  that  he  did,  at  the  time  of  the  attach- 
ment proceeding,  owe  Epstein  some  $344. 

Generally,  though,  the  failure  on  the  part  of  the  garnishee  to  give 
proper  notice  to  his  creditor  of  the  levying  of  the  attachment  would  be 
such  a  neglect  of  duty  on  the  part  of  the  garnishee  which  he  owed  to 
his  creditor  as  would  prevent  his  availing  himself  of  the  judgment  in 
the  attachment  suit  as  a  bar  to  the  suit  of  his  creditor  against  himself, 
which  might  therefore  result  in  his  being  called  upon  to  pay  the  debt 
twice. 

The  judgment  of  the  Supreme  Court  of  North  Carolina  must  be  re- 
versed, and  the  cause  remanded  for  further  proceedings  not  incon- 
sistent with  the  opinion  of  this  court.^* 

Reversed. 

Harlan  and  Day,  JJ.,  dissented. 


2  9  The  state  courts  are  in  great  confusion  on  this  subject.  Some  courts  have 
maintained  that  the  situs  of  a  debt  for  the  purpose  of  garnishment  is  at  the 
domicile  of  the  creditor.  Louisville  &  N.  R.  Co.  v.  Nash,  118  Ala.  477,  23  South. 
825,  41  L.  R.  A.  331,  72  Am.  St.  Rep.  181  (1898).  But  it  has  been  held  that 
a  Legislature  may  constitutionally  fix  the  situs  of  a  debt  for  such  purpose 
at  the  residence  of  the  debtor.  Harvey  v.  Thompson,  128  Ga.  147,  57  S.  E. 
104,  9  L.  R.  A.  (N.  S.)  765,  119  Am.  St.  Rep.  373  (1907).  Other  courts  have 
allowed  the  attachment  of  the  debt  at  the  residence  of  the  debtor  upon  the 
general  ground  that,  so  far  as  the  remedy  of  the  creditors  of  the  payee  of 
the  debt  is  concerned,  it  has  a  situs  there.  Cross  v.  Brown,  19  R.  I.  220, 
33  Atl.  147  (1895) ;  Bragg  v.  Gaynor,  85  Wis.  468,  55  N.  W.'  919,  21  L.  R. 
A.  161  (1893).  Others  again  have  allowed  such  a  garnishment  wherever 
the  debtor  could  be  found  or  sued.  Harvey  v.  Great  Northern  R.  Co.,  50  Minn. 
405,  52  N.  W.  905,  17  L.  R.  A.  84  (1892)  ;  Wyeth  Hardware  &  Mfg.  Co.  v.  H. 
F.  Lang  &  Co.,  127  Mo.  242,  29  S.  W.  1010,  27  L.  R.  A.  651,  48  Am.  St.  Rep. 
626  (1895).  It  has  been  held,  also,  that  a  debtor  can  be  garnished  only  in 
the  state  whei'e  the  debt  is  payable,  provided  it  is  also  the  place  of  residence 
of  his  creditor.  American  Cent.  Ins.  Co.  v.  Hettler,  37  Neb.  849,  56  N.  W.  711, 
40  Am.  St.  Rep.  522  (189.3) ;  Bullard  v.  Chaffee,  61  Neb.  83,  84  N.  W.  604,  51 
L.  R.  A.  715  (1900).  See,  in  general,  19  L.  R.  A.  577-580;  67  L.  R.  A.  20^ 
223 ;   8  Col.  Law  Rev.  325. 

As  to  garnishment  of  foreign  corporations,  see  19  Cyc.  1331-1337;  Louis- 
ville &  N.  R.  Co.  V.  Deer,  200  U.  S.  176,  26  Sup.  Ct.  207,  50  L.  Ed.  426  (1906) 
National  Fire  Ins.  Co.  v.  Chambers,  53  N.  J.  Eq.  468,  32  Atl.  663  (1895) ;  Lan 
cashire  Ins.  Co.  v.  Corbetts,  165  111.  592,  46  N.  E.  631,  36  L.  R.  A.  640,  56  Am 
St.  Rep.  275  (1897)  ;  Pennsylvania  R.  Co.  v.  Rogers,  52  W.  Va.  450,  44  S.  E 
300,  62  L.  R.  A.  178  (1903)  ;  Baltimore  &  O.  R.  Co.  v.  Allen,  58  W.  Va.  388 
52  S.  E.  465,  3  L.  R.  A.  (N.  S.)  608,  112  Am.  St.  Rep.  975  (1905). 

As  to  attachment  of  shares  of  stock,  see  J.  H.  Beale,  Jr.,  Foreign  Corpora 
tions,  §  37G ;  also  55  L.  R.  A.  796-809. 

Taxation.  Intangible  pi'operty  has  a  situs  for  the  purpose  of  taxation  at 
the  domicile  of  the  creditor.  Kirtland  v.  Hotchkiss,  100  U.  S.  491,  25  L.  Ed. 
558  (1879).  Capital  may  be  taxed,  however,  in  the  state  where  it  is  emploj'- 
ed,  though  the  owner  be  a  nonresident.  New  Orleans  v.  Stemple,  175  U.  S. 
309,  20  Sup.  Ct.  110,  44  L.  Ed.  174  (1899)  ;  Bristol  v.  Washington  County, 
177  U.  S.  133,  20  Sup.  Ct.  585,  44  L.  Ed.  701  (1900)  ;  State  Board  of  Assess- 
ors of  Parish  of  Orleans  v.  Comptoir  National  D'Escompte,  191  U.  S.  388,  24 


Ch,   1)  PROPERTY.  339 

Sup.  Ct.  109,  48  L.  Ed.  232  (1903)  ;  Metropolitan  Life  Ins.  Co.  v.  New  Orleans, 
205  U.  S.  395,  27  Sup.  Ct.  499,  51  L.  Ed.  S53  (1907).  But  tlie  mere  presence 
of  the  instrument  evidencing  a  debt  does  not  confer  authority  to  tax  upon  the 
state  where  it  is  found.  Buck  v.  Beach,  206  U.  S.  392,  27  Sup.  Ct.  712,  51  L. 
Ed.  1106  (1907).  Unless,  perhaps,  the  debt  is  incorporated  in  a  specialty. 
State  Tax  on  Foreign-Held  Bonds,  15  Wall.  300,  21  L.  Ed.  179  (1872).  But  a 
mortgage  securing  notes  held  by  a  nonresident  may  be  taxed  at  the  situs  of 
the  realty.  Savings  &  Loan  Soc.  v.  Multnomah  Co.,  169  C.  S.  421,  18  Sup.  Ct 
392.  42  L.  Ed.  803  (1898). 

Shares  of  stock  are  taxable  at  the  domicile  of  the  stockholder.  Dwight  v. 
Mayor,  etc.,  of  City  of  Boston,  12  Allen  (Mass.)  316,  90  Am.  Dec.  149  (1800)  ; 
Dyer  v.  Osborne,  11  R.  I.  321,  23  Am.  Rep.  460  (1876) ;  Worth  v.  Commissioners 
of  Ashe  County,  90  N.  C.  409  (1884).  But  in  creating  a  corporation  a  state  may, 
for  the  purpose  of  taxation,  assign  a  situs  to  the  stock  at  the  domicile  of  such 
corporation.  Tappan  v.  Merchants'  Nat.  Bank,  19  Wall.  490,  22  L.  Ed.  189 
(1873);  Corry  v.  Baltimore,  196  U.  S.  466,  25  Sup.  Ct.  297,  49  L.  Ed.  556 
(1905). 

A  transfer  or  succession  tax  may  be  imposed  on  debts  owed  by  citizens  of 
a  state  to  a  nonresident.  Blackstone  v.  Miller,  188  U.  S.  189,  23  Sup.  Ct.  277, 
47  L.  Ed.  439  (1903).  Or  upon  stock  or  bonds  held  by  a  nonresident  in  a  do- 
mestic corporation.  Matter  of  Bronson's  Estate,  150  N.  Y.  1,  44  N.  E.  707,  34 
L.  R.  A.  238,  55  Am.  St.  Rep.  632  (1S9G)  ;  Matter  of  Cooley's  Estate,  186  N. 
T.  220,  78  N.  E.  939.  10  L.  R.  A.  (N.  S.)   1010  (1906). 

A  tax  may  be  levied  upon  transfers  inter  vivos  within  the  state  of  shares 
of  stock  held  in  a  foreign  corporation  by  a  nonresident.  People  v.  Reardon. 
184  N.  y.  431,  77  N.  E.  970,  8  L.  R.  A.  (N.  S.)  314,  112  Am.  St.  Rep.  628 
(1906),  affirmed  204  U.  S.  152,  27  Sup.  Ct.  188,  51  L.  Ed.  415  (1907). 


340  PARTICULAR  SUBJECTS.  (Part  2 

CHAPTER  n. 

OBLIGATIONS. 


SECTION  1.— CONTRACTS. 

I.  In  Generai,.^' 

1  As  to  jurisdiction  to  enforce  foreign  contracts,  see  55  Axa.  St.  Rep.  774^778. 
As  to  place  where  contract  is  made,  see  55  Am.  St.  Rep.  44r-55 ;   99  Am.  Dec. 
668-675. 

The  general  rule  is  that  a  contract  is  deemed  made  in  the  state  or  country 
where  the  last  act  necessary  to  make  it  a  binding  agreement  takes  place.  Su- 
preme Lodge  K.  P.  V.  Meyer,  198  U.  S.  508,  25  Sup.  Ct.  754,  49  L.  Ed.  1146 
(1905)  ;  Haas  v.  Myers,  111  111.  421,  53  Am.  Rep.  634  (1884)  ;  Born  v.  Home 
Ins.  Co.,  120  Iowa,  299,  94  N.  W.  849  (1903)  ;  Emerson  Co.  v.  Proctor,  97  Me. 
360,  54  Atl.  849  (1903).  A  contract  concluded  by  correspondence  will,  there- 
fore, ordinarily  be  deemed  to  have  been  made  at  the  place  where  the  letter 
of  acceptance  was  mailed  or  the  telegram  of  acceptance  was  delivered  for 
transmission.  Perry  v.  Mount  Hope  Iron  Co.,  15  R.  I.  380.  5  Atl.  632,  2  Am. 
St.  Rep.  902  (1886)  ;  Emerson  Co.  v.  Proctor,  97  Me.  360,  54  Atl.  849  (1903)  . 
Continental  Law. — France.  According  to  the  prevailing  opinion,  the  con- 
tract is  regarded  as  made  at  the  place  where  the  letter  of  acceptance  is  post- 
ed. App.  Rouen,  Feb.  28,  1874  (D.  1877,  2,  222)  ;  App.  Rennes.  Dec.  15,  1891 
(19  Cluuet,  912);  App.  Limoges,  March  2,  1894  (D.  1895,  2,  257);  App.  Poi- 
tiers, Oct.  28,  1907  (4  Darras,  222).  In  favor  of  place  where  the  letter  of  ac- 
ceptance is  received.  App.  Lyon,  June  27,  1867  (D.  1867,  2,  193) ;  App.  Chambery, 
June  8,  1878  (D.  1878,  2,  113).  The  Court  of  Cassation  has  held  that  the  place 
where  the  contract  is  made  is  a  question  of  fact,  to  be  left  to  the  determination 
of  the  trial  judge.  Cass.  Aug.  6,  1867  (S.  1867,  1,  400)  ;  Cass.  Dec.  1,  1875 
(D.  1877,  1,  450). 

Germany. — Notwithstanding  the  rule  that  a  declaration  of  intention  (Wil- 
Icnserklarung)  requiring  communication  is  not  effective  until  it  reaches  the 
other  party  (section  130,  Civ.  Code),  it  seems  to  be  held  that  a  contract  will  be 
deemed  made  in  the  state  where  the  offer  is  accepted.  62  R.  G.  379  (Feb.  12, 
1906);  R.  G.  June  2,  1908  (18  Niemeyer,  449).  See  also,  section  351,  Civ.  Code. 
Italy. — Article  36,  Com.  Code,  provides  that  a  contract  is  not  complete  until 
notice  of  the  acceptance  reaches  the  offeror.  If  the  offeror  requests  an  imme- 
diate performance,  however,  or  if  the  nature  of  the  transaction  is  such  that  in 
accordance  with  general  commercial  usage  an  answer  is  not  required,  it  will  be 
deemed  complete  the  moment  the  offeree  has  entered  upon  his  performance.  See 
Cass.  Palermo,  Feb.  17,  1900  (La  Legge  1901,  1,  165)  ;  Cass.  Turin,  Dec.  30, 
1892  (Monitore  1893,  p.  389)  ;  Cass.  Turin,  Jan.  13,  1891  (Monitore  1891,  p. 
189).  These  rules  apply  also  to  civil  contracts.  Cass.  Turin,  Feb.  4,  1891 
(Giurispr.  Tor.  1891,  p.  153) ;  Cass.  Rome,  Feb.  1,  1892  (2  Riv.  de  Dir.  Eccl. 
006). 

See,  also,  F.  Surville,  Des  contrats  par  correspondance,  notammant  dans  les 
rapports  internationaux,  18  Clunet,  361^79. 


Ch.    2)  OBLIGATIONS.  34] 

MONTANA  COAL  &  COKE  CO.  v.  CINCINNATI  COAL 
&  COKE  CO. 

(Supreme  Court  of  Ohio,  1904.     69  Ohio  St.  351,  69  N.  E.  613.) 

On  February  1,  1896,  the  defendant  in  error  the  Cincinnati  Coal  & 
Coke  Company  executed  and  dehvered  to  the  plaintiff  in  error,  the 
Montana  Coal  &  Coke  Company,  a  promissory  note,  of  which  the  fol- 
lowing" is  a  copy: 
"$1,654.39,  Cincinnati,  Feb.  1,  1896. 

"Ninety  days  after  date  the  Cinti.  Coal  &  Coke  Co.  promise  to  pay 
to  the  order  of  Montana  Coal  &  Coke  Co.  sixteen  hundred  fifty-four 
and  thirty-nine  one-hundreth  dollars,  payable  at  Northern  Bank,  Cov- 
ington, Ky.,  value  received.  A.  Montgomery,  Pres. 

"L.  Stock,  Sec'y  &  Treas." 

On  the  back  of  said  note  appear  the  following  indorsements: 
"A.  Montgomery  &  Co.     Marshall  McDonald." 

The  consideration  for  the  note  was  coal  sold  by  the  plaintiff  in  er- 
ror to  the  defendant  in  error  the  Cincinnati  Coal  &  Coke  Company, 
prior  to  its  date.  The  Cincinnati  Coal  &  Coke  Company,  when  the 
money  was  due,  requested  an  extension  of  time  for  payment,  and  the 
plaintiff  in  error  agreed  to  extend  the  time  for  payment,  provided 
that  the  Cincinnati  Coal  &  Coke  Company  would  execute  and  deliver 
to  the  plaintiff  a  90-day  note,  indorsed  by  A.  Montgomery  &  Co.  and 
Marshall  McDonald.  A.JMpntgpmery  &  Co.  did  so  indorse  said  note 
on  the  back_J±Ler£oJ_at_Covington,  Ky.,  prior  to  the  delivery  of  the 
note  to  the  plaintiff  in  error.  The~  Ciiiclfinati  Coal  &  Coke  Company 
thereupon  sent  said  note  to  Marshall  McDonald,  at  Pittsburg,  Pa., 
and  he  there  indorsed  his  name  on  the  back  of  said  note  after  the  in- 
dorsement of  A.  Montgomery  &  Co.,  and  returned  the  said  note  to 
the  Cincinnati  Coal  &  Coke  Company,  at  Cincinnati,  Ohio,  after  which 
the  Cincinnati  Coal  &  Coke  Company  delivered  the  note  to  the  plain- 
tiff in  error^  the  Montana  Coal  &  Coke  Company,  at  Cincinnati,  Ohio. 
The  note,  on  default,  was  not  protested,  nor  was  notice  of  nonpay- 
ment given  to  Alexander  Montgomery,  the  surviving  partner  of  A. 
Montgomery  &  Co.,  nor  to  Marshall  McDonald  or  his  legal  repre- 
sentatives. The  note  was  never  discounted  or  negotiated  at  any  bank 
in  the  state  of  Kentucky.  No  suit  was  instituted  to  compel  the  Cin- 
cinnati Coal  &  Coke  Company  to  pay  the  note  in  any  court  prior  to 
this  suit.  Each  of  the  circuit  courts  of  the  state  of  Kentucky,  being 
courts  of  general  jurisdiction  in  all  actions  at  law,  held  a  term  sub- 
sequent to  May  1,  1896,  at  which  an  action  might  have  been  brought 
by  the  plaintiff  in  error  to  recover  any  sum  that  might  have  been  due 
upon  the  note  set  out  in  the  petition.  The  plaintiff,  the  Montana  Coal 
&  Coke  Company,  has  always  been  the  owner  and  holder  of  the  note 


342  ,  PARTICULAR  SUBJECTS.  (Part  2 

set  forth  in  the  petition.  On  the  trial  of  this  action  in  the  court  of 
common  pleas  of  Hamilton  county  the  court  held  upon  these  facts  that 
the  liability  of  Alexander  Montgomery  and  Marshall  McDonald  was 
to  be  determined  by  the  laws  of  the  state  of  Kentucky,  and  that  by  the 
laws  of  that  state  said  indorsers  were  to  be  regarded  as  assignors 
merely,  and  were  released  from  all  liability  to  the  payee  of  the  note 
in  suit,  because  the  payee  had  failed  to  prosecute  the  maker  to  insol- 
vency at  the  next  term  of  the  circuit  court  in  that  state  after  the  ma- 
turity of  the  note.  The  petition  of  the  plaintiff  in  error  was  there- 
fore dismissed  as  to  Montgomery  and  McDonald,  and  this  judgment 
was  affirmed  on  error  to  the  circuit  court  of  Hamilton  county. 

Davis^  J.  This  court  has  already  committed  itself  to  the  doctrine 
that  "a  contract  made  in  one  state  or  country  to  be  performed  in  an- 
other is  governed  by  the  laws,  of  the  latter,  which  determine  its  valid- 
ity, obligation,  and  effect."  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v. 
vSheppard,  56  Ohio  St.  68,  46  N.  E.  61,  60  Am.  St.  Rep.  732 ;  Kanaga 
v.  Taylor,  per  Bowen,  J.,  7  Ohio  St.  142,  70  Am.  Dec.  62.  This  rule 
is  so  well  established  upon  reason  and  authority  that  it  requires  no 
discussion  here.  The  note  which  is  the  subject  of  controversy  in  this 
case  was  signed  by  one  of  the  parties  in  Ohio,  and  before  delivery  by 
another  in  Kentucky  and  by  another. in  Pennsylvania;  but  it  was  de- 
livered to  the  agent  of  the  payee  in  Ohio.  The  contract  was  within 
the  control  of  the  parties  who  are  bound  by  it,  and  did  not  become 
effective  until  it  was  delivered.  Therefore  the  loci  contractus  is  Ohio. 
But  the  place  of  performance,  the  loci  solutionis,  is  Kentucky,  be- 
cause the  note  is  expressly  made  "payable  at  Northern  Bank,  Coving- 
ton, Ky."  The  plaintiff  in  error  insists  that  this  stipulation  binds 
onTy'lEhe  principal  debtor,  the  Cincinnati  Coal  &  Coke  Company 
which  signed  underneath  the  note  and  upon  the  face  of  it;  and  that 
the  contract  of  the  parties  who  signed  in  blank  on  the  back  of  the 
note,  although  before  its  delivery,  is  like  the  engagement  of  an  in- 
dorser,  an  independent  contract  which  contains  no  stipulation  as  to 
the  place  of  performance.  Hence  it  is  argued  that  as  to  these  parties 
the  case  is  controlled  by  the  lex  loci  contractus ;  that  is,  the  law  of 
Ohio.  From  our  point  of  view,  Montgomery  &  Co.  and  McDonald 
were  not  indorsers  in  the  regular  way  and  in  the  course  of  business 
as  the  owners  or  holders  of  the  note.  All  of  the  defendants  were 
original  parties  to  the  note,  having  signed  it  before  it  came  into~the 
possession  of  the  first  owner,  the  payee.  The  facts  are  undisputed, 
and  the  obvious  deduction  therefrom  is  that  the  parties  to  the  note 
at  the  time  of  its  utterance  all  understood,  and  meant  to  be  governed 
by,  its  terms;  for  at  the  time  Montgomery  &  Co.  and  McDonald  put 
their  signatures  on  the  back  of  the  note  the  stipulation  that  the  money 
should  be  "payable  at  Northern  Bank,  Covington,  Ky.,"  was  as  much 
a  part  of  the  original  contract  as  the  promise  to  pay  to  the  order  of 
plaintiff  the  sum  of  money  which  is  stated.  There  was,  in  shorl,  jao 
separate  contract  after  the  making  of  the  note;   but  the  note  came  to 


Ch.    2)  OBLIGATIONS.  343 

the  payee  sig^ned  by  all  of  the  defendants,  and  with  the  place  of  per- 
formance distinctly  expressed. 

TEere  was  therefore  no  error  in  the  judgments  of  the  courts  below, 
and  the  judgment  of  the  circuit  court  is  affirmed. ^ 


SPRINGS  V.  SOUTHBOUND  R.  CO. 
(Supreme  Ctourt  of  South  Carolina,  1896.    46  S.  C.  104,  24  S.  E.  1G6.) 

The  plaintiffs  were  cotton  buyers  in  South  Carolina  and  as  such 
shipped  over  the  defendant's  railroad  to  the  city  of  Savannah,  Ga.,  171 
bales  of  cotton,  arriving  at  destination  about  February  28,  1893.  The 
defendant  stood  the  cotton  bales  up  on  the  ends  of  the  bales,  exposed  to 
the  weather,  from  February  28,  1893,  until  the  23d  of  April,  1893,  at 
which  time  they  were  shipped  by  the  steamer  D.  H.  Miller  to  the  city 
of  Baltimore,  where  they  arrived  on  April  25,  1893.  The  cotton  was 
sold  to  Albert  G.  Ober,  of  that  city.  When  weighed  by  Albert  R. 
Rhett,  a  public  weigher  of  that  city,  the  heads  of  bales  were  found  to 
be  wet  with  water.  The  plaintiffs  sued  the  railroad  company  to  re- 
cover from  it  the  sum  of  $275.64,  as  injury  to  the  171  bales  of  cotton, 
which,  they  alleged,  resulted  to  their  property  from  their  negligence 
and  carelessness  in  exposing  the  cotton  to  the  weather  for  nearly  two 
months.  The  answer  admitted  the  shipment  over  its  road  by  the  plain- 
tiffs, but  alleged  that  it  observed  due  care  of  the  cotton  after  it  reach- 
ed the  city  of  Savannah.^ 

Pope,  J.*  *  *  *  in  the  thirteenth  exception  it  is  alleged  the 
circuit  judge  was  in  error  when  he  charged  the  jury:  "Did  they  [de- 
fendant] put  it  [the  cotton]  in  a  place  of  safety  when  it  reached  Savan- 
nah? Did  they  safely  keep  the  cotton — preserve  it?  If  they  did  not,' 
they,  under  the  laws  of  the  state  of  Georgia,  would  be  liable  for  any 
damage  resulting."  The  presiding  judge  made  this  quotation  from 
the  Georgia  case  cited  by  appellant :  "We  think  section  2044  of  the 
Code  dispenses  with  the  notice  in  this  case,  and  relieves  the  plaintiff' 
from  any  error  or  liability  as  a  common  carrier  after  the  transporta- 
tion of  the  freight  within  the  accustomed  time,  a  deposit  of  it  in  a  place 
of  safety,  and  the  holding  of  it  there  ready  for  delivery,  on  deutand." 
(Italics  ours).  Remembering  that,  as  to  delivery,  the  defendant  as 
well  as  plaintiffs  were  bound  by  the  laws""ortlie^sta;te  of  Georgia,  wliere 
the  delivery  was  had,  we  can  see  no  error  on  the  part  of  the  circuit 
judge,  for  it  is  in  keeping  with  the  requirements  of  the  laws  of  Georgia 
on  this  subject.    This  ground  of  appeal  is  dismissed.     *     *     * 

2As  to  where  the  place  of  performance  in  general  is  deemed  to  be,  see  Minor, 
Conflict  of  Laws.  377,  378 ;  Grant  v.  Ilealey,  Fed.  Cas.  No.  5,696  (1839).  Com- 
pare Ballister  v.  Hamilton,  3  La.  Ann.  401  (1848). 

3  The  facts  have  been  taken  from  the  opinion  and  have  been  slightly 
abridged. 

*  Only  so  much  of  the  opinion  is  given  as  relates  to  the  law  governing 
delivery. 


344 


PARTICULAR  SUBJECTS. 


(Part  2 


BENNERS  V.  CLEMENS. 

(Supreme  Court  of  Pennsylvauia,   18G8.     58  Pa.   24.) 

This  was  an  amicable  action  of  assumpsit  to  December  term,  1866, 
in  which  John  Clemens  was  plaintiff  and  Isaac  R.  Benners,  survivor  of 
the  firm  of  Isaac  R.  Benners  &  Co.,  defendant.  The  claim  was  for  a 
balance  due  by  defendant  on  an  invoice  of  fruit,  contracted  for  in  Eng- 
land and  shipped  to  defendant  to  New  York.  The  whole  amount  of 
the  shipment  was  $2,967.85,  which  was  reduced  to  $896.95  by  quercit- 
ron bark  shipped  to  plaintiff.  The  plaintiff  claimed  to  recover  this  bal- 
ance at  gold  prices  with  interest  from  December  17,  1863.  The  only 
question  in  the  case  was  whether  it  was  to  be  paid  on  that  basis. 

The  verdict  was  .for  $1,456.65,  the  whole  amount  of  the  plaintiff's 
claim.    The  defendant  took  a  writ  of  error. 

Thompson,  C.  J.  The  debt  sued  for  was  a  debt  contracted  in  Eng- 
land, or  rather  the  balance  of  a  debt  contracted  and  partially  liquidated 
there  by  returns  in  quercitron  bark.  In  the  absence  of  any  understand- 
ing to  the  contrary  the  balance  was  due  and  payable  there.  This  being 
so,  it  was  payable  in  the  legal  currency  of  the  country,  denominated 
pounds,  shillings,  and  pence,  and  the  representative  of  gold.  Of 
course,  as  any  payment  obtained  here  would  be  payable  in  legal  tender 
notes,  the  value  of  the  gold  in  legal  tenders,  with  interest,  would  be 
what  in  amount  the  judgment  should  be.  The  lex  loci^contractus  must 
control  in  interpreting  the  contract.  Allshouse  v.  Ramsay,  6  Whart. 
331,  37  Am.  Dec.  417;  Watson  v.  Brewster,  1  Pa.  381,  and  authorities 
cited  by  the  defendant  in  error.  This  view  of  the  case  is  sufficient  to 
affirm  the  judgment  without  reference  to  any  question  arising  on  our 
legal  tender  acts. 

The  judgment  being  right  in  amount  is  affirmed.^ 

5As  to  whether  the  amount  recoverable  is  to  be  calculated  by  the  real 
par,  or  by  the  nomiual  par,  see  Lee  v.  Wilcocks,  5  Serg.  «&  R.  48  (1S19) ; 
Scofield  V.  Dav,  20  Johns.  (N.  Y.)  102  (1822) ;  Adams  v.  Corlis.  8  Pick.  (Mass.) 
2G0  (1829)rGrant  v.  Healev.  Fed.  Cas.  No.  5,690  (1839);  Marburg  v.  Mar- 
burg, 26  Md.  8,  90  Am.  Dec.  84  (186G). 

In  Abt  V.  American  Trust  &  Savings  Bank,  159  111.  467,  470,  42  N.  E.  856, 
50  Am.  St.  Rep.  175  (1896),  the  point  for  detennination  was  whether  the  Il- 
linois law  or  the  New  York  law  should  govern  the  question  whether  the 
drawing  of  a  draft  in  Illinois  on  a  New  York  bank  operated  as  an  assign- 
ment pro  tanto  of  the  funds  on  deposit.  Ttie  court,  per  Carter,  J.,  said: 
"The  contract  was  to  be  performed  in  New  York,  and  it  must  be  presumed 
that  upon  a  question  of  this  character  the  parties  contracted  with  reference 
to  the  laws  of  the  state  where  the  contract  was  to  be  performed,  rather  than 
with  reference  to  the  laws  of  the  state  where  the  contract  was  made."  In 
Davis  V.  Adae,  7  Ohio  Dec.  620  (1879),  it  was  held,  however,  that  as  between  the 
drawer  of  a  check  and  the  liohler  the  lex  loci  contractus  should  govern.  And  in 
France  the  law  of  the  place  where  a  bill  of  exchange  is  drawn  determines  its 
effect  upon  the  funds  in  the  hands  of  the  drawee.  Cass.  Feb.  6,  1900  (S.  1900, 
1,  161),  and  note  by  Ch.  Dyon-Caen.     Such  law  has  been  held  to  apply  also 


^^it^^     J!\-rJT/l^    (UnJU^       QHsiA^AdyfA^    '^  >  ^^S'^H-ocM^ 


Ch.    2)  OBLIGATIONS.  .       ^y^  ^^^  '^ 


GRAHAM  V.  FIRST  NAT.  BANK  OP  NORFOLK.  ^'     -J^'     ^ 

rt  of  Appeals  of  New  York,  1881.    &i  N.  Y.  393,  38  Am.  Rep.  528.)  ^  .  "^ 


(Court  of  Appeals  of  New  York,  1881.    &i  N.  Y.  393,  38  Am.  Rep.  528.) 
Finch,  J.®    The  ownership  of  one  hundred  and  ninety-six  shares  of     \  \)^^'^^ 


stock,  which  stood  upon  the  books  of  the  Norfolk  Bank  in  the  name  of 
EHza  A.  Graham,  must  be  deemed  vested  in  her,  whether  the  purchase 
price  was  paid  by  her  or  by  her  husband,  and  notwithstanding  the  evi- 
dent control  of  it,  for  his  own  purposes,  by  the  latter.  No  creditors 
of  the  husband  intervene  to  affect  the  question,  and,  as  between  Mrs. 
Graham  and  the  bank,  her  right  as  owner  must  be  admitted.  The  divi- 
dends declared  during  such  ownership  belonged  to  and  were  payable 
to  her;  and,  assuming  for  the  present  that  her  assignment  to  plaintiffs 
was  effective  to  transfer  such  right  to  them,  there  remain  for  discus- 
sion only  the  two  questions :  Whether  the  Norfolk  Bank  did,  in  fact, 
pay  the  dividends  sued  for  to  the  husband  of  Mrs.  Graham;  and  wheth- 
er by  such  payment  to  him  the  liability  of  the  bank  to  her  was  dis- 
charged. The  referee  has  found  that  such  payments  were,  in  fact, 
made  to  James  Graham,  the  husband.     *     *     * 

While  the  facts  are  not  free  from  difficulty,  a  careful  examination  ''^ 
has  satisfied  us  that  there  was  sufficient  evidence  to  warrant  the  find- 
ing of  the  referee,  and  to  make  it  conclusive  on  this  appeal. 

The  question  of  law,  however,  remains,  whether  the  payment  by  the 
bank  to  Jafnes^  Graham  was  a  good  payment  to  his  wife  in  whose  name 
the  stock  stood  upon  the  books  of  the  bank.  The  Norfolk  Bank  was 
located  and  transacted  business  in  the  state  of  Virginia.  It  is  proved 
that  in  that  state  the  common  law  prevails  as  it  respects  the  relation  of 
husband  and  wife,  and  that  within  that  jurisdiction  the  husband  has  the 
absolute  right  to  reduce  to  his  own  possession,  and  use  for  his  own 
benefit,  the  personal  property  of  the  wife.  The  contract  out  of  which 
grew  the  right  to  the  dividends  was  both  made  and  to  be  performed  in 
Virginia,  and  if  the  payment  by  the  Bank  of  Norfolk  to  James  Graham 
is~to  be  tested  and  measured  by  the  law  of  that  state,  it  is  conceded  to 
have  been  good  and  an  eft'ective  discharge  of  the  liability  to  the  wife. 
It  is  denied,  however,  that  the  law  of  Virginia  applies,  and  it  is  ar- 
gued that  the  law  of  Maryland,  the  lex  domicilii,  governs  and  "controls" 
the  capacity  of  the  parties  to  receive  payment,  and  the  duty  of  the  bank 
in  making  it.  The  general  subject  of  a  conflict  between  the  law  of  the 
domicile  and  that  of  the  place  of  contract  has  been  fully  discussed  by 
Story  and  Wharton  in  their  respective  treatises.  Story  on  Conflict  of 
Laws,  §  374  et  seq. ;  Wharton,  §  393  et  seq.     Whatever  is  useful  in 

between  an  Indorser  and  his  indorsee.  App.  Gaen,  Dec.  12,  1900  (29  Clunet, 
321).  But  see  App.  Rennes,  Aug.  1,  1895  (23  Clunet,  376),  in  favor  of  the  law 
of  the  place  of  indorsement. 

6  The  statement  of  facts  and  a  part  of  the  opinion  have  been  omitted- 


<i^fij>''^^ 


346  PARTICULAR  SUBJECTS.  (Part  2 

the  learning  of  the  continental  jurists,  or  the  decisions  of  the  English 
courts,  has  been  made  tributary  to  conclusions  which  we  may  safely 
follow  where,  at  least,  they  are  in  harmony  with  the  ruling  of  our  own 
tribunals.  It  must,  then,  be  granted  that  movables  or  personal  prop- 
,erty,  by  a  fiction  of  the  law,  are  deemed  attached  to  the  person  of  the 
/owner,  and  so,  present  at  his  domicile,  whatever  their  actual  situation 
may  be.  The  law  of  the  domicile,  therefore,  naturally  governs  their 
transfer  by  the  owner,  and  their  disposition  and  distribution  in  case  of 
his  death.  So  far  the  authorities  substantially  agree,  differing  only  in 
the  reasons  upon  which  the  rule  is  founded,  and  by  which  it  is  to  be 
justified.  When,  however,  the  question  passes  beyond  the  disposition 
of  the  personal  property  by  the  party,  or  the  act  of  the  law,  within  the 
jurisdiction  of  the  domicile,  and  busies  itself  with  the  inherent  character 
of  the  property,  and  of  the  contracts  which  both  create  and  consti- 
tute it,  elements  of  discord  arise,  and  the  authorities  are  not  easily  to 
be  reconciled.  It  is  readily  seen  that  the  inherent  character  of  the  con- 
tract must  usually  be  the  product  of  the  jurisdiction  in  which  it  origi- 
nates, and  hence  it  follows,  and  has  been  justly  held^  that  the  construc- 
tion, nature  and  effect  of  a  contract  are  to  be  determined  by  the  lex 
loci  contractus.  Story  on  Conflict  of  Laws,  §  321.  But  no  such  j^ues- 
tion  is  here.  There  is  no  dispute  about  the  construction  of  lHe"contract 
to  pay  dividends.  All  are  agreed  upon  that.  There  is  no  trouble  as 
to  the  nature  of  the  contract  or  its  effect.  Its  validity,  and  the  duty  of 
payment  to  the  stockholders,  is  conceded  on  all  sides.  Th^_re3l-question 
is  over  the  performance  of  the  contract,  or  its  discharge  by  payment ; 
and  that  involves  the  capacity  of  the  husband  to  receive  and  discharge 
the  debt,  represented  by  the  dividends,  jure  mariti.  On  the  one  hand 
it  is  argued  that  this  question  of  capacity,  of  the  rights  and  powers 
flowing  from  the  marriage  relation,  is  dependent  upon  the  law  of  the 
;  domicile,  and  utterly  unaffected  by  the  foreign  law,  and  the  former 
;  must,  therefore,  dictate  and  measure  the  authority  and  power  of  the 
\  husband  and  the  right  of  the  wife.  That  is,  in  general,  true  as  between 
\  themselves,  and  relatively  to  each  other.  It  does  not  follow  that  it  is 
true  as  between  them  and  a  debtor  in  another  state,  whose  contract  was 
made  there,  and  is  there  to  be  performed.  Such  a  fact  introduces  a 
new  element  into  the  problem.  It  would  scarcely  be  endurable  jf  a 
railroad  or  insurance  company  declaring  dividends  in  this  state  should 
be  bound  to  pay  stockholders  in  other  states  according  to  the  foreign 
laws,  and  in  accordance  with  different  and  varying  Codes.  Observ- 
I  ing  the  evil  result  we  must  remember  that,  in  a  case  like  the  present, 
it  is  a  legal  fiction  which  attaches  the  property  to  the  domicile,  and 
the  actual  fact  may  be  otherwise.  Judge  Comstock,  in  People  ex  rel. 
Hoyt  v.  Commissioners  of  Taxes,  23  N.  Y.  228,  well  says,  "that  the  fic- 
tion or  maxim,  'Mobilia  personam  sequuntur,'  is  by  no  means  of  uni- 
versal application.  Like  other  fictions  it  has  its  special  uses.  It  may 
b^  resorted  to  when  convenience  and  justice  so  require.  In  other  cir- 
cumstances the  truth  and  not  the  fiction  affords,  as  it  plainly  ought  to 


Myrv\r**^ 


Ch.    2)  OBLIGATIONS.  347 


A^./^^^-^ 


afford,  the  rule  of  action."  And  Judge  Story  says  that  the  legal  fiction 
"yields  whenever  it  is  necessary  for  the  purposes  of  justice,  that  the 
actual  situs  of  the  thing  should  be  examined."  Confl.  of  Laws,  §  550. 
And  hence  has  been  very  steadily  sustained  the  general  rule  that  a 
contract  made  in  one  state  and  to  be  performed  there  is  governed  by  the 
law  of  that  state,  and  the  further  rule,  which  is  a  logical  result,  that 
a  defense  or  discharge,  good  by  the  law  of  the  place  where  the  contract  «-^^'V*"'^0^    ' 

is  made  or  to  be  performed,  is  to  be  held,  in  most  cases,  of  equal  valid-  c/JU^^^^^^-''^^'''^ 

ity  elsewhere.    Story  on  Confl.  of  Laws,  §  331 ;  Thompson  v.  Ketchum,  vl^u^^a"^^ 

8  Johns.  189,  5  Am.  Dec.  333 ;  Bartsch  v.  Atwater,  1  Conn.  409 ;  Smith 
V.  Smith,  2  Johns.  235,  3  Am.  Dec.  410;  Hicks  v.  Brown,  12  Johns. 
142 ;  Sherrill  v.  Hopkins,  1  Cow.  103 ;  Peck  v.  Hibbard,  26  Vt.  702,  62  ^^^ 

Am.  Dec.  605 ;  Bowen  v.  Newell,  13  N.  Y.  290,  64  Am.  Dec.  550 ;  Cut-  ^  jM^-f^^^^^^^^^^^^ " 
ler  V.  Wright,  22  N.  Y.  472 ;  Waldron  v.  Ritchings,  3  Daly,  288 ;  Jewell         -  'ix-^*"*^"*^ 
V.  Wright,  30  N.  Y.  259,  86  Am.  Dec.  372;  Willitts  v.  Waite,  25  N.  ca/n^^^'^^"^^^ 

Y.  577.  In  these  cases  the  fiction  yields  to  the  fact ;  the  situs  at- 
tached theoretically  to  the  person  of  the  owner,  and,  therefore,  to  his 
domicile,  surrenders  to  the  actual  situs  where  justice  and  convenience 
demand  it.  The  illustrations  are  various,  but  founded  upon  a  common 
reason  and  justification.  For  the  purpose  of  taxation  the  actual  situs 
controls  and  the  fiction  which  carries  the  personal  property  to  the  domi- 
cile of  the  owner  is  disregarded.  As  to  days  of  grace  affecting  the 
maturity  of  a  contract  and  determining  when  it  becomes  due,  the  lex 
loci  is  applied.  The  defense  of  infancy  is  to  be  sustained  or  denied  ac- 
cording to  the  rule  of  the  place  of  contract  and  performance.  So,  also, 
as  to  the  disability  of  coverture,  and  the  rate  and  legality  of  interest. 
And  even  an  assignment,  in  invitum,  compelled  by  the  local  law,  will 
transfer  property  in  another  state  where  suitors  in  the  courts  of  the  lat- 
ter are  not  thereby  prejudiced.  These  rulings  and  others  of  the  like 
character  have  been  modified  and  moulded  in  their  application  by  the 
influence  of  varied  circumstances,  but  concur  in  the  general  principle 
upon  which  the  lex  loci  has  been  applied.  The  point  pressed  here  is 
that  while  it  controls  the  construction  and  validity  of  the  contract  it 
does  not  settle  the  capacity  of  the  nonresident  parties.  But  to  found  a 
ruling  upon  such  a  test  would  involve  us  in  an  ambiguity.  Capacity  may 
aft'ect  the  power  of  transfer  and  the  direction  and  details  of  distribu- 
tion. In  that  respect  it  is  often  shaped  and  settled  by  the  law  of  the 
domicile.  But  it  also  affects  the  validity  of  a  contract  and  the  mode 
and  manner  of  its  dissolution  or  discharge.  In  that  respect  it  is  gen- 
erally governed  by  the  law  of  the  place  of  contract.  Story  concludes, 
after  a  full  and  learned  review  of  the  insuperable  difficulties  which  at- 
tend an  eft'ort  to  extend  the  capacity  or  incapacity  created  by  the  law 
of  the  place  of  domicile  to  foreign  states,  that  the  true  rule  is  that  "the, 
capacity,  state_and  condition  of  persons  according  to  the  law  of  their 
domicile  will  generally  be  regarded  as  to  acts  done,  rights  acquired  and 
contracts  made  in  the  place  of  their  domicile,  touching  property  situate 
therein^"  but  as  to  acts  done,  etc.,  elsewhere  the  lex  loci  contractus  will 


348 


PARTICULAR  SUBJECTS. 


(Part  2 


^t^"^ 

'.^d^- 

^ 


govern  in  respect  to  capacity  and  condition.  We  cannot  make,  there- 
fore, the  law  of  the  domicile  in  and  of  itself  a  solvent  of  the  doubts  and 
difficulties  likely  to  arise  even  as  to  questions  of  capacity.  In  the  pres- 
ent  case_the  contract  was  made  in  Virginia  and  to  be  performed  \\-\ere 
The  dividends^wergjhe?gI^eHaJed~anH^a^^  They  were  paid  to  the 
husband  who  could  lawfully  receive  and  appropriate  them,  by  the  law 
_of  Virginia,  to  his  own  use  and  benefit.  The  payment  was,  there f or e^, 
valid  and  effectual  and  discharged  the  bank  from  its  liability.  The 
rights  of  the  wife  after  such  payment,  as  between  herself  and  her  hus- 
band under  the  law  of  Maryland,  might  prove  to  be  a  very  different 
question.  It  is  sufficient  for  the  purpose  of  this  case  that  the  payment, 
which  the  referee  finds  was  in  fact  made  to  the  husband,  discharged  the 
liability  of  the  bank  and  furnished  a  defense  to  the  action. 

The  judgment  should  be  affirmed  with  costs.     All  concur,  except 
Rapallo,  J.,  absent.^ 


\y^ 


v~^ 


^■V 


HEALY  v.  GORMAN. 

(Supreme  Court  of  New  Jersey,  1836.     15  N.  J.  Law,  328.) 


This  was  an  action  of  assumpsit  on  a  promissory  note  dated  in  the 
city  of  New  York,  and  payable  at  the  State  Bank  in  Elizabethtown, 
New  Jersey.    The  Chief  Justice,  on  the  trial  at  the  circuit,  directed  the 

7  Where  the  further  performance  of  a  contract  became  impossible  by  reason 
of  military  operations  at  the  place  of  performance,  or  by  reason  of  prohib- 
itive enactments  by  the  local  government  of  such  place,  the  question  wheth- 
er the  contract  was  discharged  was  held  to  be  determined  by  the  law  governing 
the  making  of  the  contract,  and  not  by  that  governing  its  performance.  Jacobs 
v.  Credit  Lyonnais,  L.  R.  12  Q.  B.  Div.  589  (1884) ;  Tvveedie  Trading  Co.  v. 
James  P.  McDonald  Co.  (D.  C.)  114  Fed.  985  (1902).  In  the  latter  Adams, 
District  Judge,  said:  "Contracting  parties  are  subject  to  the  contingencies 
of  changes  in  their  owoi  law,  and  liable  to  have  the  execution  of  their  con- 
tracts prevented  thereby;  but  it  is  on  the  ground  of  illegality,  not  of  im- 
possibility. Prevention  by  the  law  of  a  foreign  country  is  not  usually  deem- 
ed an  excuse,  when  the  act  which  was  contemplated  by  the  contract  was 
valid  in  view  of  the  law  of  the  place  where  it  was  made.  Pol.  Cout.  3G3 ; 
Abb.  Shipp.  (13th  London  Ed.)  755;  Carv.  Carr.  by  Sea  (3d  Ed.)  §  255;  Clif- 
ford V.  Watts,  L.  R.  5  C.  P.  577,  586;  Duff  v.  Lawrence,  3  Johns.  Cas.  162, 
172;  Speuce  v.  Chadwick,  10  Q.  B.  517,  530;  Jacobs  v.  Credit  Lyonnais,  12 
Q.  B.  Div.  589.  And  a  fortiori  when  it  was  also  then  valid  at  the  place 
of  performance." 

Continental  Law. — a.  In  (jeneral. — There  is  general  agreement  that 
matters  relating  to  the  perforniauce  of  an  obligation  should  be  subject  to 
the  lex  solutionis.  France,  Trib.  Com.  Rouen,  Dec.  10,  1899  (15  Autran.  442) ; 
Trlb.  Com.  ]\Iarseille,  Sept.  20.  1894  (25  Clunet,  749).  Germany,  0  R.  G.  125 
(March  11,  1882);  O.  L.  G.  Hamburg,  Oct.  31,  1900  (17  Autran,  163).  Italy, 
article  10,  Prel.  Disp.  Civ.  Code ;  Cass.  Naples,  Dec.  4,  1892  (26  Clunet,  866) ; 
App.  Catania,  July  17,  1880  (Giurispi*.  Cat.  1880,  p.  168). 

b.  Interest  and  damages. — Contractual  interest  is  subject  to  the  general 
rules  governing  contracts  in  the  particular  country.  France,  Cass.  Feb.  19, 
1890  (17  Clunet,  495) ;  App.  Bordeaux,  Aug.  22,  1865  (S.  1866,  2,  217).  Italy, 
article  9,  Prel.  Disp.  Civ.  Code.  Moratory  interest,  on  the  other  hand,  is 
fixed  by  the  lex  solutionis.  France,  Cass.  April  13,  1885  (S.  1886.  1,  154). 
Germany,  1  R.  G.  59  (Feb.  20,  1880);  24  R.  O.  H.  G.  388  (Dec.  6,  1878).  Italu,. 
Cass.  Florence,  July  4,  1892  (Temi  Ven.  1892,  p.  454). 


Ch.   2)  OBLIGATIONS.  349 

jury  to  allow  interest,  at  the  rate  of  seven  per  cent.,  being  the  legal  in- 
terest of  the  state  of  New  York,  where  the  plaintiff  lived,  and  the  con- 
tract was  made.  It  was  agreed  by  the  counsel  for  the  parties,  that  this 
question  of  the  rate  of  interest  should  be  moved,  and  argued  at  the  bar 
of  the  court,  and  if  the  direction  of  the  Chief  Justice  should  be  found 
wrong,  then  that  the  excess  of  interest  should  be  deducted  and  judg- 
ment be  entered  for  the  residue. 

HoRNBLOWER,  C.  J.  I  am  satisfied  that  I  was  wrong  in  directing  the 
jury  to  allow  interest  at  the  rate  of  seven  per  cent.,  the  legal  interest  in 
the  state  of  New  York,  instead  of  New  Jersey  interest,  which  is  only 
six  per  cent. 

Mr.  Justice  Story  in  his  Commentaries  on  Conflicting  Laws,  241,  § 
291,  says :  "The  general  rule  is,  that  interest  is  to  be  paid  on  contracts, 
according  to  the  law  of  the  place,  where  they  are  to  be  performed,  in  all 
cases  where  interest  is  expressly  or  impliedly  to  be  paid."  In  support 
of  this  rule  the  commentator  refers  to  a  great  number  of  cases,  both 
American  and  English. 

Chancellor  Kent  in  his  Commentaries  (section  39,  pp.  460,  461,  2d  ^  p^ 

Ed.)  says:     "The  law  of  the  place  where  the  contract  is  made,  is  to  /  (l^  '       la^ 

determine  the  rate  of  interest,  when  the  contract  specifically  gives  in-  >    "^/^^^r^c*^ '     \j^ 
terest ;  and  this  will  be  the  case  though  the  loan  be  secured  by  a  mort-  I        (^r^  J^^""^^ 
gage  on  lands  in  another  state,  unless  there  be  circumstances  to  show  I  '    '^^'\>^ 

that  the  parties  had  in  view  the  law  of  the  latter  place  in  respect  of  in-/  ,^r\i  .  r^ 
terest;  when  that  is  the  case,  the  rate  of  interest  of  the  place  of  pay-  c^T^  ^^,^^ 
ment,  is  to  govern." 


The  note  in  question  though  made  in  the  city  of  New  York  was  in 
express  terms  to  be  paid  at  the  Bank  of_Elizabeth,  in  this  state.     The       ^  't 

contract~"did  notjcarry  inter^  upon  the  face  of  it,  but  upon  default  of  ^,  "^  .  W' / 

payment  at  the  day  and  place,  theTaw  ot  this  state  tacitly  annexes  an    Q<^^    -^  *^ 
obligation  thenceforth  to  pay  interest  until  the  debt  is  liquidated.     But        JX^  o^tf^  ' 

the  obligajjoD  ta_pay_interest  was  no  part  of  the  contract ;  for  if  the ,  ^^^  ^  ^^  y*. 

contract  had  been  performed,  no  interest  could  have  been  demanded.  -  ^^^^^  vkS 
It  may  be'said  however,  that  it  was ;  and  that  the  understanding  of  .aj^  ^  ' 
the  parties,  and  therefore  in  legal  contemplation,  a  part  of  the  New  j^  ^^  I 
York  contract,  that  if  the  money  was  not  paid  at  maturity,  it  should  fj^  ,  i/*^  ^ 
then  carry  interest  till  paid.  But  the  liability  to  pay  interest,  in  such  J^'^*^  -  %^ 
case  is  rather  a  legal  consequence,  than  a  conventional  duty.    The  con-  "  •  *' 

tract  itselfwas~ToFpaymenT  at  a  day  certain.  It  did  not  contemplate  a 
failure  in  the  performance,  and  therefore  made  no  provisions  in  antici- 
pation of  such  an  event;  but  left  the  law  to  take  its  course  in  case  of 
a  breach  of  the  contract.  Since,  therefore,  the  event  whirh  gave  rise 
to  and  legalizes  the  plaintiff's  claim  to  interest,  Viapppnpd  in  this  .^tatf ; 
or  in  otKeT^vof^sTlInce  jtjwasjhere_that  the  right  to  interest  accrued^ 
and  by  operation  Of  our  law  that  it  becomes  payablfL-lhe  rate  ofjnter- 
est  muslrbe^'such  as  is  allowed_jn  this  state.  See  Story  on  Conflicting 
Laws,  245,  §§  2947^95!    The  excess  of  interest  must  therefore  be  de- 


350  PARTICULAR  SUBJECTS.  (Part  2 

ducted,  and  judgment  entered  for  the  residue,  pursuant  to  the  agree- 
ment of  the  parties  entered  into  at  the  circuit. 

Ford  and  Ryerson,  JJ.,  concurred. 

Judgment  for  6  per  cent,  interest* 


CURTIS  V.  DELAWARE,  L.  &  W.  R.  CO. 

(Court  of  Appeals  of  New  York,  1878.    74  N.  Y.  IIG,  30  Am.  Rep.  271.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  Second  Judicial  Department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  decision  of^the  court  on  trial,  without  a  jury. 

This  action  was  brought  to  recover  for  the  loss  of  a  trunk  and  its 
contents.  The  court  found,  in  substance,  that  plaintiff,  on  the  9th  of 
October,  1875,  took  passage  on  defendanfsj:oad  from  Scranton.  Ea..  to 
New  YorkCity,  leaving  his  baggage  to  be  brought  by  his  wife ;  that,  on 
the  16th  of  OcTubfer,  1875,  plaintiff's  wife  and  infant  son  took  passage  at 
Scranton  for  Ne\v_Yorkj  .with  his  and  their  baggage,  consisting  of 
personal^iotEing^  all  of  which  wasjiis  property ;  that  the  baggagejwas 
was  b rouglifsaTely  bjTdefendant  tn  New  Vnrk,  and  was_there  lost 
through  Itsnegligencer 

Thafby^aTgeheral  act  of  the  Legislature  of  said  commonwealth  of 
Pennsylvania,  passed  on  the  11th  day  of  April,  1867  (P.  L.  69),  and  at 
all  times  since  and  still  in  force,  it  was  enacted  and  declared  as  follows : 

"Section  1.  Each  passenger  upon  a  railroad  shall  have  the  right  to 
have  carried  in  the  car  or  place  provided  for  that  purpose,  in  the  train 
in  which  he  or  she  may  be  a  passenger,  his  or  her  personal  clothing, 
not  exceeding,  inclusive  of  the  trunk  or  box  in  which  it  may  be  con- 
tained, one  hundred  pounds  in  weight,  and  $300  in  value. 

"Sec.  2.  No  railroad  company  shall,  under  any  circumstances,  be  lia- 
ble for  loss  or  damage  of  any  baggage  or  property  belonging  to  any 
such  passenger,  beyond  the  said  sum  of  $300,  unless  it  shall  be  proven 
that  the  excess  in  value  thereof  over  that  sum  was  duly  declared  to  the 
agents  of  the  company  at  the  time  of  its  delivery  for  transportation, 
and  the  sum  charged  by  the  railroad  company  for  such  transportation 
over  and  above  passage  fare  was  paid : 

"Provided,  however,  that  the  said  declaration  shall  not  relieve  the 
claimant  from  proving  the  actual  value  of  the  articles  alleged  to  have 
been  lost  or  damaged ;  but  in  no  event  shall  there  be  any  recovery  be- 
yond the  value  thus  declared." 

Further  facts  appear  in  the  opinion. 

Miller,  J.®  The  right  of  a  passenger  to  recover  of  a  railroad  cor- 
poration damages  arising  by  reason  of  a  loss  of  baggage,  while  travel- 

8  As  to  contractual  interest,  see  62  L.  R.  A.  35-37 ;  Minor,  Conflict  of  Laws, 
§  184. 

"A  part  of  the  opinion  has  been  omitted. 


,Ch.   2)  OBLIGATIONS.  351 

ing  upon  the  railroad,  is  fully  established,  and  according  to  the  laws  of 
this  state  there  can  be  noj^uestion_as_Jo  the  liability  of^such  company 
for  the  loss'^actually  sustained,  when  it  fails  to  fulfill  the  contract  with 
the  traveleiT^f  is~  chaTgeibriZ3\dth  negHgence>_hy_J4diic]i_  the  damao;-es 
are  caused.    The  baggage,  for  whicb-^a-rerovery  was  had,  was_cleliver-    | 
e3~lo~The"  defendant  at  Scranton,  in  the  s^e  of  Pennsylvania,  to  be    J 
transported  to  and  HpHvprpf^jn  the  rity  ni  New  Vnrk.     The  first  ques- 
tion which  arises  upon  this  appeal  is  whether  the  statute  of  the  state 
of  Pennsylvania  passed  in  1867,  which  limits  and  defines  thejiability 
of  railroad  corporations  upon  contracts  entered  into  by  them  for  the 
transmission  of  baggage,   forms  a  part  of  the  contract  between  the 
plaintiff  and  the  defendant,  and  should  be  considered  as  determining 
the  right  to  recover  and  the  amount  of  the  recovery.    I  think  that  the  0 
statute  cited  has  no  application,  and  that_the_xigbtq  of  the  parties  must   > 
be  determined  in  accordance  with  the  Jaws  of  the  state  of  New  York,  y 
which  are~~appIicable_to  _such  _contracts,_as_is-Jlianif eslL,by__  referring  to 
the  principles''which_govern  contracts  of  tliis_desciiption.     One  of  the 
rules  applicable  to'the  subject  is  that  the  lex  loci  contractus  is  to  gov- 
ern,  unless  it  appears  upon  the  fa^^_of  the  contract  that  it  was  to  be 
performed  in  someother  place,  ormade  with  reference  to  the  laws  of 
some  other  placeTand  then  the  rule  of  interpretation  is  governed-bx-ll^e 
law  of  the  placer~Pyl<e"  v.  Erie  JxICo^  45  N.  Y^jLI3^_£,Am-_^£f): 


43;  SfieTfirrvT  Hopkins,  1  Cow.  103.  The  place  of_delivery_was  a  ma- 
terial  and  important  part  of  the  contract,  and  until  such  delivery  the 
same  was  not  completed  and  fuTliITed.  Upon  aTfailure  to  deliver  the 
baggage  to  the  plaintiff,  in  the  city  of  New  York,  there  was  a  breach 
of  the  contract ;  and  as  the  final  place  of  performance  was  in  that  city, 
it  would  seem  to  follow  that,  withm  the  rule  laid]^down,  the  contract 
was  to  be  guvenTed7  at  least  so  far  as  a  delivery  is  concerned,  by  the 
laws  of  New  York.  This"certainly  was  to  be  done  in  a  dift'erent  place 
from  "where  tlTe  contract  was  made,  and  it  is  a  reasonable  inference 
that  it  was  in  the  contemplation  of  the  parties  at  the  time,  and  that  it 
was  entered  into  with  reference  to  the  laws  of  the  place  where  it  was 
to  be  delivered.  So  also,  when  i^t_appears  that  the  place  of  perform- 
ance  was  different  from  the  place  of  making  the  contract,  it  is  to  be 
construed  accordinno  the  laws  of  the  place  where  it  is  to  be  pertorm- 
ed.  Sherrill  v.  Hopkins,  supra,  p.  108,  and  authorities  there  cited ; 
TFompson  V.  Ketchum,  8  Johns.  189,  5  Am.  Dec.  332 ;  4  Kent's  Com. 
459.  The  place  of  final  performance  of  the  contract  being  in  the  city 
of  New  York,  although  the  transportation  was  mostly  through  other 
states,  no  reason  exists  why  a  failure  to  deliver  the  baggage  should 
not  be  'Controlled  by  the  laws  which  prevail  at  the  place  of  delivery.  It 
is  said  that  the  contract  is  entire  and  indivisible,  and  we  are  referred 
to  some  cases  outside  of  this  state,  which,  it  is  claimed,  sustain  the  doc- 
trine that  the  locality  where  the  contract  was  made,  in  cases  of  this 
character,  must  control.  None  of  the  cases  cited  are  entirely  similar 
to  the  one  at  bar  and  do  not  involve  the  precise  point  now  considered. 


352  PARTICULAR  SUBJECTS.  (Part  2 

But  even  were  it  otherwise,  they  are  not,  I  think,  controlling-,  as  no  rea- 
son exists  why  a  contract  to  deliver  baggage  should  not  be  governed  by 
the  laws  of  the  place  where  the  baggage  is  to  be  delivered.     *     *     *  ^° 


In  re  MISSOURI  S.  S.  CO. 

(Court  of  Appeal,  1889,    42  Ch.  D.  321,  58  L.  J.  Ch.  721.) 

This  was  an  action  for  damages,  brought  in  England  by  A.  N.  Mun- 
roe,  a  citizen  of  the  United  States,  residing  at  Boston,  Mass.,  against 
the  Missouri  Steamship  Company,  Limited,  which  was  in  course  of  vol- 
untary liquidation,  for  the  loss  of  264  head  of  cattle  shipped  by  Mun- 
roe  in  America  on  board  their  ship,  the  Missouri. 

The  Missouri  Steamship  Company  was  an  English  company,  having 
its  offices  at  Liverpool,  and  the  Missouri  was  an  English  ship.     The 
cattle  were  shipped  by  Munroe  under  contracts  in  the  English  form, 
signed  by  the  agents  of  the  company  at  Boston.     The  contracts  and 
^  bills  of  lading  contained  each  a  stipulation,  relieving  the  carrier  from 
^   liability  for  loss  occasioned  through  the  negligence  of  the  master  and 
crew. 
'     y^  ,  The  Missouri  was  wrecked  on  the  coast  of  Carnarvon  and  the  cattle 

^lT^,     .  were  drowned.     For  the  purpose  of  this  claim  it  was  admitted  that 

Ai^  xx/v'*'^'^     >'*^  ^^  cargo  was  lost  through  the  negligence  of  the  master  and  crew. 
^^^^    K.  ^^i/r*  ^^^^''""^^]lj:9"^^^rlp'^  t1iat.4h€_^Qfttca£t_should_be  governed_by  the  law 

v/'*'         j_  .         ^      of  Massachusetts,  accordin^:  to-^whir>i_any  special   mntract  exempting 
O^^y-/    J.    a  common  carrier  from  responsibility  for  tlie_negligence  of  himself 
or  his  servants  was  nulfandUoidr 


^: 


^ 


^-  Chitty,  J.,  held  the  stipulations  valid.  "First,  on  the  general  ground 

>^A^  i^^  that  the  contracts  are  governed  by  the  law  of  the  flag,  and,  secondly, 

^  on  the  particular  ground  that  from  the  special  provisions  of  the  con- 

tracts  themselves  it  appears  that  the  parties  were  contracting  with  a 

^'^^  view  to  the  law  of  England." 

From  this  judgment  the  claimant  appealed.  The  appeal  came  on  to 
be  heard  on  June  20,  1888,  but  the  hearing  stood  over  to  await  the  de- 
cision of  The  Alontana  case  in  the  Supreme  Court  of  the  United  States. 
The  case  came  on  again  on  the  1st  of  May,  1889,  when  a  printed  copy 
of  the  judgment  of  The  Montana  case  was  produced  to  the  court  from 
which  it  appeared  that  the  stipulation  in  question  was  held  by  the  Su- 
preme Court  to  be  void  as  being  contrary  to  public  policy.^^ 

Fry,  L.  J.^^    The  principles  on  which  this  case  has  to  be  decided  have 

loAccord:  Brown  v.  Camden  &  A.  R.  Co.,  83  Pa.  316  (1877);  Williams 
V.  Central  R.  Co.  of  Now  Jersey,  93  App.  Div.  582,  88  N.  Y.  Supp.  434  (1904), 
affirmed  183  N.  Y.  518,  7G  N.  B.  1116  (1905). 

11  The  statement  of  facts  has  been  somewhat  abridged. 

12  The  opinion  of  Chitty,  J.,  in  the  court  below,  and  the  concurring  opinions 
of  Lord  Halsbury,  L.  C,  and  Cotton,  L.  J.,  have  Ijeen  omitted. 


Ch.    2)  OBLIGATIONS.  353 

been  familiar  to  the  courts  at  any  rate  since  the  time  of  Lord  Mansfield, 
who  in  the  case  of  Robinson  v.  Bland,  2  Burr.  1077,  expounded  those 
principles  of  law,  and  they  have  been  clearly  stated  since  in  many  cas- 
es, among  others  in  the  well-known  case  of  Lloyd  v.  Guibert,  Law  Rep. 
1  Q.  B.  115,  122,  where  the  learned  judge  who  delivered  the  judgment 
of  the  Exchequer  Chamber,  said :  "It  iSjhowever,  generally  agreed 
that  the  law  of  the  place  where  the  con^p^t  is  made,  is  prima  facie 
that  which  the  parties  intended,  or  ought  to  be  presumed  to  have  adopt- 
ed as  the  footing  upon  which  they  dealt,  and  that  such  law  ought  there- 
fore to  prevail  in  the  absence  of  circumstances  indicating  a  different 
intention,  as  for  instance" — and  he  goes  on  to  enumerate  instances 
from  which  the  courts  have  gleaned  a,  different  intention.  That  view 
of  the  law  was  fully  adopted  in  the  case  of  Jacobs  v.  Credit  Lyonnais, 
12  O.  B.  D.  589,  in  this  court.  ■ 


I  think,  therefore,  the  general  prmciple^on  whichwejiave  toj^roceed 
is  one  which  admits  of  no  doubt^;  and  the  inquiry,  therefore,  is  this: 
Looking  aMhe"^uBJect-rnatter_of  this  jcontract,  the  place  jwhere  it  was 
made,  the  contracting  parties^^nd  jthe  thin^s^  t^o  be  done,  what  ought 
to  be  presunieiJToTiave  T>een  the  intention  of  the  contracting  parties 
with  regard  TojEEUawjvvhich  was  to  govern  this  contract?  By  that 
I  mean  to  determine  its  validity~and  its  interpretation. 

Now,  in  the  first  place,  the  ship  was  an  English  ship;  the  owners 
were  an  English  company ;  England  was  the  place  to  which  the  goods 
were  to  be  brought  and  the  place  at  which  the  final  completion  of  the 
contract  was  to  take  place ;  and,  what  is  still  more  important,  the  forms 
of  the  contract  and  the  bills  of  lading  were  English  forms.  Accord- 
ing  to  the  law  of__England,  th^contract  would-be  good  in  the  tenns 
in  which  it  stood ;  whereas  according  to  the  law  of  the  United  States 
importarit  terms  of  the  contract  would  be  excluded  from  it.  That  is, 
to  my  mind,  a  very  cogent  consideration  to  shew  that  what  must  be 
presumed  to  have  been  the  intent  of  the  parties  was  this:  That  the 
law  which  would  make  the  contract  valid  in  all  particulars  was  the  law 
to  regulate  the  conduct  of  the  parties.  Looking  at  all  the  circumstances 
of  the  case,  I  have  no  doubt  that  that  is  the  conclusion  which  we  ought 
to  arrive  at. 

In  coming  to  that  conclusion,  and  in  stating  those  principles,  I  am 
glad  to  find  that  I  am  in  entire  accordance  with  the  law  laid  down  in 
the  American  courts.  It  appears  to  me  that  the  passages  cited  from 
Mr.  Justice  Story  are  strong  in  favor  of  the  principle  to  which  I  have 
referred,  and  in  the  case  of  The  Montana  that  rule  was  adopted  in  ex- 
press terms  by  the  Supreme  Court  of  the  United  States.  Lord  Justice 
Cotton  has  read  one  passage  from  that  judgment,  and  I  will  read  an- 
other: "This  court  has  not  heretofore  had  occasion  to  consider  by 
what  law  contracts  like  those  now  before  us  should  be  expounded. 
But  it  has  often  affirmed  and  acted  on  the  general' rule,  that  contracts 
are  to  be  governed,  as  to  their  nature,  their  validity,  and  their  interpre- 
tation, by  the  law  of  the  place  where  they  were  made,  unless  the  con- 
LoB.CoNF.L.— 23 


354  PARTICULAR  SUBJECTS.  (Part  2 

tracting  parties  clearly  appear  to  have  had  some  other  law  in  view." 
And  in  that  very  case,  in  accordance  with  the  principle  so  laid  down, 
the  Supreme  Court  proceeded  to  inquire  whether  there  were  any  cir- 
cumstances from  which  they  ought  to  presume  any  other  law  than 
that  of  the  place  where  the  contract  was  made  to  have  been  presumed 
by  the  parties.  Therefore,  it  is^^byious  in  adopting^jthe  principles 
which  I  have  stated_we^are  proceeding  not  only^'according'  to  the  Kng- 
lish  law,  but  also  according  to~th'ela w  of  America.  It  Ts^ery  desirable, 
if  possible,  that  tlieTaw  relating~"to  the  mterchange  of  comity  between 
nations  should  be  the  same. 

There  was  only  one  other  argument  put  forward  to  which  I  need 
refer,  and  it  seemed  to  me  to  be  a  little  halting  between  two  statements. 
Sir  Walter  Phillimore  laid  down  a  proposition  to  this  effect,  that  when- 
ever the  law  of  the  place  where  the  contract  is  made  prohibits  a  par- 
ticular stipulation  in  a  contract  no  other  country  can  treat  that  stipula- 
tion as  valid.  If  by  the  word  "prohibit"  he  means  that  the  law  of  the 
United  States  has  in  terms  prohibited  or  has  rendered  illegal  or  crim- 
inal the  introduction  of  this  stipulation,  it  appears  to  me  that  the  de- 
cision in  The  Montana  case  shows  that  that  is  not  the  law  of  the  Unit- 
ed States.  That  decision  I  think,  when  fairly  read,  shews  what  one 
would  expect  to  be  the  case,  namely,  that  the  courts  have  held  that 
this  stipulation  being  obnoxious  to  their  public  policy  is  void,  not  il- 
legal, exactly  in  the  same  way  as  in  this  country  we  hold  that  stipula- 
tions which  are  in  restraint  of  trade  are  not  illegal,  and  that  the  enter- 
ing into  them  does  not  constitute  an  illegal  conspiracy,  but  thev  are 
void.  If,  on  the  other  hand,  it  be  argued  that  where  the  law  of  the 
place  of  the  contract  refuses  to  enforce  a  stipulation,  then  no  other 
country  will  enforce  that  stipulation,  we  have  a  proposition  which  on 
the  face  of  it  appears  to  me  to  be  untenable.  Therefore,  whichever  is 
the  alternative  of  the  proposition  which  Sir  Walter  Phillimore  adopts, 
neither  of  them  will  support  his  case. 

I  think,  therefore,  the  decision  of  Mr.  Justice  Chitty  was  correct,  and 

that  thiFappeal  fails. ^^ 

---) 

13  See  Hamlvn  v.  Talisker  Distillery  (H.  L.  Sc),  [1894]  A.  C.  202;  Spurrier 
V.  La  Cloche,  [1902]  A.  C.  446. 

Continental  Law. — France. — In  the  absence  of  an  express  stipulation 
or  special  circumstances  showing  a  contrary  intent,  the  law  of  the  place 
where  a  contract  is  made  will  govern  its  substance  and  effect.  Cass.  Feb. 
6,  1900  (S.  1900,  1,  161)  ;  Cass.  Feb.  23,  1864  (S.  1864,  1,  385).  Germany.— 
German  courts  apply  the  law  of  the  place  of  performance.  R.  G.  July  4, 
1904  (15  Niemeyer,  285).  [This  rule  has  been  applied  to  the  determination  of 
the  validity  of  a  clause  not  to  engage  in  a  similar  business.  R.  G.  March  22, 
1904  (S.  1904,  4,  6).  And  to  the  question  of  usury.  46  R.  G.  112  (May  20,  1900).] 
In  favor  of  the  lex  domicilii  of  the  debtor,  see  61  R.  G.  343  (Oct.  12,  1905).  In 
the  case  of  bilateral  agreomonts,  where  the  place  of  performance  of  one  party 
is  different  from  the  place  of  performance  of  the  other,  the  obligations  of  eacli 
party  will  be  detennined  with  reference  to  the  lex  solutionis  of  his  own  part 
of  the  agi-eement.  34  R.  G.  191  (Oct.  13.  1894) ;  46  R.  G.  193  (April  28.  1900) : 
51  R.  G.  218  (April  21,  1902) ;  55  R.  G.  105  (June  16,  1903) ;  R.  G.  Apr.  26, 
1907  (18  Niemeyer  177).  Unless,  in  accordance  with  the  presumed  in- 
tention of  the  parties,  a  uniform  law  can  be  deemed  applicable.    R.  G.  April 


<f^ 


r^     rr\A^/al^>r\JO'y^. 


Ch.  2) 


(Supreme  Judicial  Court  of  Massachusetts,  ISil.    2  Mete.  3S1.) 


^  OBLIGATIONS.  855       s>^UyyijL.^Aj'j  ^ 

CARNEGIE  V.  MORRISON.  ,  . 

Shaw,  C.  J.^*    A  case,  involving  most  of  the  same  questions  which  "  '  ' 

arise  in  the  present,  was  argued  at  a  former  term;  but,  having  stood 
over  for  consideration,  the  court  have  been  desirous  of  hearing  the 
argument  in  this  case,  before  giving  an  opinion  in  the  former  one. 
It  has  now  been  fully  and  very  ably  argued  on  both  sides.  It  involves 
questions  of  much  difficulty,  and  of  great  importance  to  the  mercantile 
community. 

It  is  an  action  of  assumpsit,  brought  by  Carnegie  &  Co.,  a  mercan- 
tile firm  at  Gottenburg,  Sweden,  against  Messrs.  Morrison,  Cryder  & 
Co.  of  London.  The  action  is  founded  upon  a  letter  of  credit  given 
by  the  defendants,  by  Mr.  Oliver,  their  general  agent  residing  in  Bos- 
ton, upon  the  application  of  Mr.  John  Bradford,  in  favor  of  the  plain- 
tiffs, and  for  the  purpose  of  paying,  in  part,  a  large  debt  due  from 
Bradford  to  the  plaintiffs,  for  merchandise  before  shipped  to  him  on 
credit.    The  letter  of  credit  is  of  the  following  tenor : 

"Boston,  4  March,  1837. 
'  "Messrs.  Morrison,  Cryder  &  Co.,  London :  Mr.  John  Bradford 
of  this  city  having  requested  that  a  credit  may  be  opened  wiih  you 
for  his  account  in  favor  of  Messrs.  D.  Carnegie  &  Co.  of  Gothenburg, 
for  three  thousand  pounds  sterling,  I  have  assured  him  that  the  same 
will  be  accorded  by  you  on  the  usual  terms  and  conditions. 

"Respectfully  your  ob't  serv't,  Francis  J.  Oliver. 

"For  £3,000." 


4,  190S  (18  Niemeyer,  138).  A  uniform  law  will  apply  also  where  the  ex- 
istence of  the  contract  itself  is  in  question.  R.  G.  Feb.  13,  1891  (47  Seuf- 
fert's  Archiv,  3).  As  to  where  the  place  of  performance  is  in  general  deemed 
to  be,  see  section  269,  Civ.  Code.  Italy. — 'Article  9,  Prel.  Disp.  Civ.  Code, 
provides:  "The  substance  and  effects  of  obligations  shall  be  presumed  to  be 
governed  by  the  law  of  the  place  where  the  acts  took  place  and,  if  the  con- 
tracting parties  ai*e  foreigners  and  subjects  of  the  same  country,  by  their 
national  law.  A  different  intent,  however,  mav  always  be  shown."  See  Cass. 
Turin,  Feb.  4,  1891  (Giurispr.  Tor.  1891.  p.  153) ;  Cass.  Rome,  Nov.  7,  1894 
(S.  1895,  4,  13).  As  to  commercial  obligations  see  article  58,  Com.  Code: 
"The  form  and  essential  conditions  of  commercial  obligations,  the  form  of 
acts  required  for  the  exercise  and  preservation  of  rights  springing  therefrom 
and  for  their  execution,  as  well  as  the  effect  of  the  acts  themselves,  shall  be 
governed  by  the  laws  and  usages  of  the  place  where  the  obligation  was  cre- 
ated, respectively,  by  the  laws  and  usages  of  the  place  where  said  acts  take 
place  or  are  to  be  performed,  reserving  in  all  cases,  however,  the  exceptions 
established  by  article  9  of  the  Preliminary  Dispositions  of  the  Civil  Code 
with  respect  to  persons  sub.iect  to  the  same  national  law."  See,  also,  L.  Beer, 
Zum  internationalen  Obligationenrecht.  18  Niemeyer,  3.34-363 ;  A.  de  Reu- 
terskiold,  De  la  loi  qui  doit  regir  les  obligations  contractuelles  d'apres 
le  droit  international  priv6,  26  Clunet,  462-470,  654-663;  J.  Aubry,  Le  do- 
maine  de  la  loi  d'autonomie  en  droit  international  prive,  23  Clunet,  46.5-4S1, 
721-745;  J.  Aubry,  De  la  notion  de  la  territorialite  en  droit  international 
prive,  27  Clunet,  689-704 ;  28  Clunet,  253-273,  043-671 ;  29  Clunet,  209-243. 
14  The  statement  of  facts  and  a  part  of  the  opinion  have  been  omitted. 


356 


PARTICULAR  SUBJECTS. 


(I'art 


It  appears  by  the  evidence,  that  OHver  was  the  general  agent  of  the 
defendants  in  Boston;  that  this  letter  of  credit  was  obtained  upon  the 
application  of  Bradford,  and  was  immediately  forwarded  to  the  plain- 
tiffs, at  Gottenburg;  and  that  notice  of  it  was  given  to  the  defendants, 
at  London.  Mr.  Oliver  knew  the  purpose  for  which  Bradford  wanted 
it.  He  had  often  had  similar  letters  of  credit  from  Mr.  Oliver  before ; 
all  of  which  have  been  honored,  except  one  other  in  favor  of  Scholfield 
&  Co.  which  is  now  in  controversy  in  this  court.  Mr.  Bradford  was 
accustomed  to  give  satisfactory  security,  from  time  to  time,  to  Mr. 
Oliver,  and  to  pay  the  defendants  a  commission  of  one  per  cent.  It 
also  appears  that  upon  the  strength  of  this  letter  of  credit,  the  plain- 
tiffs drew  a  bill  or  bills  on  the  defendants,  according  to  the  usual  mode 
of  drawing  bills  at  Gottenburg  on  London,  which  the  defendants  de- 
clined accepting.  Various  other  circumstances  were  given  in  evidence, 
but  this  is  a  summary  of  the  leading  facts  in  the  case. 

This  action,  if  it  can  be  maintained  at  all,  as  between  these  parties, 
must  be  maintained  on  the  letter  of  credit.  But  a  question  meets  us  at 
the  outset,  what  law  shall  determine  the  rights  of  the  parties  in  this 
transaction?  It  isojaipustliatthe  undertaking  of  the  defendants 
was,  to  do  soiTie3ctoutoFthi£^£^  The  substBJtce_of  thaTunder- 

taking  w^'^^^J^^w^'l^xE^l^lA^^LJjI^^i^^^^  ^^^  ^''^^  andbenefiL-oITCar- 
negie_&  Co.^  in  other  words,  the  substance  and  effect  of  that  under- 
taking was,  to  pay  a  sum  of  money  to  Carnegie  &  Co.  in  discharge 
of  Bradford's  debt  to  them,  by  means  of  bills  of  exchange  to  be  drawn 
by  Carnegie  &  Co.  on  the  defendants,  in  their  own  favor,  or  in  favor 
of  their  appointee,  for  their  use,  in  consideration  of  the  promise  of 
Bradford  to  provide  funds  to  meet  those  bills,  giving  them  satisfac- 
tory security,  placed  in  the  hands  of  their  agent,  and  in  further  con- 
sideration of  a  commission  of  one  per  cent,  paid  by  Bradford. 
■  In  considering  the  nature  of  this  transaction,  the  inquiry  involves 
two  questions:  First,  whether  the  transaction  in  question  constitutes 
a  contract,  in  which  the  plaintiffs  have  an  interest;  and,  secondly, 
whether  the  interest  of  the  plaintiffs  in  this  contract  is  of  such  a  char- 
acter, that  they  can  maintain  an  action  upon  it,  in  their  own  names. 
The  question,  therefore,  does  not  depend  exclusively  upon  the  lex  fori, 
although,  as  the  action  is  brought  in  this  commonwealth,  its  laws  must 
determine  whatever  relates  to  the  remedy.  Supposing  that  the  lex 
loci  contractus  is  also  to  have  a  bearing  on  the  question,  it  must  be 
considered,  that  some  of  the  rules,  applicable  to  the  construction  and 
effect  of  contracts,  are  founded  in  positive  law,  established  by  usage 
or  by  statute,  which  each  country  will  establish  for  itself,  according  to 
its  own  views  of  convenience  and  policy,  and  have  a  local  operation; 
whilst  others  are  derived  from  those  great  and  unchangeable  princi- 
ples of  duty  and  obligation,  which  are  everywhere  recognized  amongst 
mercantile  communities,  and  indeed  amongst  all  civilized  nations,  as 
lying  at  the  foundation  of  civil  contracts,  and  must  be  considered 
as  having  the  same  effect,  wherever  by  the  comity  of  nations  contracts 


c^e^^^o^W/,/ .ow    iUy^  t^    v^«^-oO  .^>U^^   ^-ts^^     <^^nre<^a.. 
cu  >(n.v^  d^^t^Ht--^    .-iv^t^   JL^^c;^    C^    W^U.^^    c^-C.^c^vr^x^^'t>. 

Ch.   2)  OBLIGATIONS.  357 

made  in  one  country  are  allowed  to  be  carried  into  effect  by  the  laws 
o£  another.  In  some  states,  for  instance,  a  bond  made  to  one  or  his 
assigns,  is  regarded  as  a  negotiable  instrument,  and  creates  an  obliga- 
tion to  pay  to  the  obligee  or  any  person,  who  shall  legally  become  the 
assignee  of  it.  In  others,  a  note  for  money,  payable  to  one  or  order, 
creates  a  legal  obligation  to  the  payee  only,  and  an  indorsee  cannot 
maintain  a  suit  in  his  own  name.  Whether  an  instrument,  made  in 
a  particular  form,  shall  have  the  one  or  the  other  construction,  will  '  . 
depend  upon  the  positive  law  of  the  country  which  governs  it;  and 
such  law  therefore  will  determine  the  nature  and  legal  obligation  of 
the  contract  created  by  it;  it  is  positive  law,  concurring  with,  and 
giving  effect  to,  the  act  of  the  parties,  which  determines  the  nature 
and  extent  of  such  contract.  But  that  a  party  entering  into  a  formal 
stipulation  to  pay  money,  or  do  some  other  beneficial  act  to  or  for 
another,  shall  substantially  perform  that  undertaking,  is  a  great  prin- 
ciple of  moral  as  well  as  legal  obligation,  and  of  international  as  well 
as  municipal  law,  recognized  everywhere. 

Taking  it  as  settled,  in  the  present  case,  that  the  defendants  became 
subject  to  a  duty  or  obligation  of  some  kind,  the  real  subject  of  dis- 
cussion is,  not  merely  as  to  the  remedy,  but  whether  the  facts  now  in 
proof  constituted  a  contract  between  these  parties,  which  may  be  en- 
forced by  an  action. 

The  objection  to  such  an  action  and  the  ground  of  this  defence  are, 
that  the  immediate  parties  to  the  transaction  were  Bradford  on  the 
one  side,  and  the  defendants  on  the  other;  that  to  this  transaction  the 
plaintiffs  were  strangers;  and  that  as  Bradford  acquired  some  rig!^' 
under  it,  and  had  a  remedy  upon  it  against  the  defendants,  their  con- 
tract must  be  deemed  to  be  made  with  him  and  not  with  the  plain- 
tiffs. But  this  position  presupposes  that  the  same  instrument  may  not 
constitute  a  contract  between  the  original  parties,  and  also  between 
one  or  both  of  them  and  others,  who  may  subsequently  assent  to,  and 
become  interested  in  its  execution;  an  assumption  quite  too  broad 
and  unlimited,  which  the  law  does  not  warrant.  In  a  common  bill  of 
exchange,  the  drawer  contracts  with  the  payee  that  the  drawee  will 
accept  the  bill ;  with  the  drawee,  that  if  he  does  accept  and  pay 
the  bill,  he,  the  drawer,  will  allow  the  amount  in  account,  if  he  has 
funds  in  the  drawee's  hands ;  otherwise,  that  he  will  reimburse  him 
the  amount  thus  paid.  He  also  contracts  with  any  person  who  rnay 
become  indorsee,  that  he  will  pay  him  the  amount,  if  the  drawee  does 
not  accept  and  pay  the  bill.  The  law  creates  the  privity.  So  in  the 
familiar  case  of  money  had  and  received,  if  A.  deposits  money  with 
B.  to  the  use  of  C,  the  latter  may  have  an  action  against  B.,  though 
they  are  in  fact  strangers.  But  if  C,  not  choosing  to  look  to  B.  as 
his  debtor,  calls  upon  A.  to  pay  him,  notwithstanding  such  deposit 
(as  he  may),  and  A.  pays  him,  A.  shall  have  an  action  against  B.  to 
recover  back  the  money  deposited,  if  not  repaid  on  notice  and  demand. 
The  law,  operating  upon  the  act  of  the  parties,  creates  the  duty,  es- 


\  ^ 


358 


PARTICULAR  SUBJECTS. 


(Part  2 


tablishes  the  privity,  and  implies  the  promise  and  obligation,  on  which 
the  action  is  founded.  Hall  v.  Marston,  17  Mass.  575.  So  in  regard 
to  a  very  common  transaction;  when  one  deposits  money  in  a  bank 
to  the  credit  of  a  third  person,  and  forwards  him  a  certificate,  or 
other  evidence  of  the  fact,  the  bank  is  regarded  as  coming  under  an 
obligation  to  pay  the  money  to  the  person  to  whose  credit  it  is  thus 
deposited.  So  it  is  held  in  England,  when  the  depositary  assents  to 
receive  the  money,  though  there  is  no  consideration  moving  from  the 
plaintiff  to  the  defendant.  Lilly  v.  Hays,  5  Adolph.  &  Ellis,  548.  We 
think,  therefore,  it  is  no  decisive  objection  to  an  action  by  the  plain- 
tiffs, that  the  act  done  constituted,  at  the  same  time,  a  contract  be- 
tween the  defendants  and  Bradford,  on  which  the  latter  might  pro- 
visionally have  had  a  remedy,  in  case  the  plaintiffs  should  not  assent 
to,  and  enforce  the  contract,  so  far  as  it  was  intended  for  their  benefit. 
From  this  view  of  the  case,  it  is^manifest  that  th£_question  jvjiether 
a  particular. 


^  ^ ■^^.^;^,^ >..,;tjon_  constitutes'  a   contract,   and   between   whgm, 

upon  which  one  party  can  have  a  reniedy_against  anoth^IL  by  iuHTcial 
proceediligs,  m'ust  depend  upon  the  law  governing  such  contract,  as 
well  as  thellaw  of  th"e;JDuiittiwhei  e  JL  i£^souglit"To"^_£nforcgd.  TFe 
remedy  may  be  sought  in  the  form  of  an  action  at  law,  or  a  bill  in 
equity,  or  before  any  special  tribunal,  according  to  the  law  of  the  place 
where  it  is  sought.     But  the  question  whether  a  particular  act  or  in- 

fstrument  constitutes  a  contract,  and  between  what  parties,  is  previous 
in  its  nature,  and  must  generally  be  settled  before  any  question  of 
remedy  arises. 

What  then  is  the  law  of  the  contract,  or  in  other  words,  what  law 
determines  whether  an  act  done  constitutes  a  contract,  and  if  so,  be- 
tween whom  and  to  what  effect?  The  general  rule  certainly  is,  that 
the  lex  loci  contractiis_determines  the  natureanH'~regaI  quality  of  the 
act"doney^:adi£ther  it  constitutes^a  ^ontraHjIIth^.  nature  and_yalidity. 
obligation  and  legal  effect  oj  such  jcgjitract ;  _and_  f urnishes_tlie  rule 
of  construction  and  ThterprfitatiQn.  There  may,  perhaps,  be  excep- 
tions  to  this  rule ;  as  where  parties  happen  to  meet  on  a  desolate  is- 
land in  a  savage  country,  where  the  principles  of  commerce  and  civili- 
zation do  not  prevail,  or  where  a  settled  municipal  law  is  not  enforced 
or  regarded.  Perhaps  such  would  be  the  construction  of  a  contract 
between  American  or  European  merchants  in  China,  who  rather  reside 
on  the  confines  of  that  empire,  than  live  under  its  govei^nment;  and 
where  they  may  be  presumed  to  have  reference,  in  their  dealings,  to 
the  general  laws  and  usages  of  the  commercial  world,  without  regard 
to  the  laws  of  the  people  with  whom  they  temporarily  reside.  But  a 
contract,  made  in  one  country,  may  contemplate  the  execution  of  deeds 
or  other  contracts,  making  payments  or  doing  other  legal  acts,  in_aii- 
other:  in j;cgard-to_  which^  the  law_of_the  foreign  country,  where  the 
act  isTolDe  done_,^jwill_governJli£.xontract;  and  the  obligation  of  such 
contracTwili  bind  the  contracting  pnrfy— fn__(jn  all  snrb  Ic^al'  acts,  ac- 
cording Lo-ttTe  law  ot  the  place  wHere  they  areto_op£rate,_sa.j^to 


Ch.  2) 


OBLIGATIONS. 


359 


haYejtheitiulLkgal  effect.  As  if  a  person  in  one  country  should  con- 
tract to  convey  lan3~in  another;  the  general  rule  being  that  the  lex 
loci  rei  sitae  furnishes  the  rule  which  regulates  titles  and  conveyances 
of  real  estate,  the  true  construction  and  legal  effect  of  such  contract 
would  be,  that  the  conveyance  should  be  executed  in  such  form  as  ef- 
fectually to  transfer  the  title,  according  to  the  law  of  the  place  where 
the  land  lies.  If  the  land  were  in  Massachusetts,  where  the  law  re- 
quires the  execution  and  acknowledgment  of  a  deed,  it  would  bind 
the  contracting,  party  to  execute  and  acknowledge  such  deed,  though 
made  in  a  country  where,  by  its  municipal  law,  a  deed  would  not  be 
necessary.  If  the  stipulation  be,  that  the  drawee  shall  accept  a  bill 
in  a  foreign  country,  and  the  law  of  that  country  require  that  a  valid 
acceptance  shall  be  in  writing,  though  not  required  by  the  law  of  the 
place  where  drawn,  it  is  a  contract  that  the  drawee  shall  accept  the 
bill  in  writing. 

That  the  transaction  now  in  question  constituted  a  good  contract 
to  some  purpose,  and  between  some  parties ;  that  it  was  made  on  a 
good,  valuable  and  adequate  consideration,  and  made  in  Massachu- 
setts, is  not  contested.  Then  the  rule  prima  facie  is,  that  the  con- 
struction and  legal  effect  of  this  transaction  are  to  be  determined  by 
the  law  of  Massachusetts.  That  is  the  law  which  must  be  regarded, 
in  the  first  instance,  in  deciding  whether  the  act  done  constituted  a 
contract,  and  if  so,  between  whom,  and  to  what  effect,  and  must 
prevail  unless  the  case  falls  within  some  exception  to  the  general  rule; 
and  the  question  is,  whether  it  does.  It  is  true  that  the_parti_£^.to  thjs 
suit  arej3otli_foreigners,  one  residing^in  SwedenTaiHj^  ptlipr  jn  K"g- 
land,.^  This,  howevefpis  imlriateriaT,  and  only  respects  the  question 
who  may  sue  and  be  sued  in  our  courts.  By  the  comity  of  nations, 
alien  friends  are  allowed  the  benefit  of  our  courts  in  seeking  their 
civil  rights,  as  plaintiffs;  and  the  defendants,  by  placing  their  prop- 
erty under  the  control  and  protection  of  our  government,  place  them- 
selves within  the  jurisdiction  of  our  courts.  But  the  immediate  actojs 
in  the  transactimis_wgr£_hpr-e.  Bradford,  the  prime  mover,  who  opened 
an~d~cohducted  theneyntjatinn,  paid  the  consideraTion,  arid  caused"the 
ob1ig;itioir-t7rl5e"enTere(jLinto^  was  a  resident  citizen  ofMassachusetts ; 
and  thmigh  in'Tpga1^1j-[rtTTPgs^hp  might  not  he  considered  as  the  ag^nt 
of  the  plaintTfrt;^  hp?nrpthpvhnfj_asspritpd  to  and  adopted  his  act,  yet 
still  he   so    far~pr^r[  fm^~FTTPn7|a<;   to   prornrp   a    ';fipulation,   whichj    if 

execut^,  w6uld__enure__ta_-tbpir  bpppfit  The  other  party,  though 
domicile^^broadTwas  here^r  the  purpose  of  conducting  mercaiitile 
and  financial  _business^II^_ih.&ii^  regularly  eQ^r^tifni-pd  resident  agent. 
The  money  was^^aid,  or  the  security  g'vp^\  i"  Boston^  which  con§lJ- 
tuted  the  consideration  for  the  defendants'  undertaking.  The  nego- 
tiation,  which  termmated  in^iying  the  letter  of  credit,  was  commenceg 
and  completed— rrr'Boston. 

Thatsbme  jJtimffF_are  referred  to  foreign  laws  and  usa.o-p^,  in  this 

Ie~instrument  itself.     The  wordSj_^^on  the 


;< 


360 


PARTICULAR  SUBJECTS. 


(Part  2 


^Si^ 


usual  terms  and  conditiony'^re  obviously  of  this  characte.r.  They 
refer-toThelaws  ami  usages  both  of^SwedeiT'and  England.  All  par- 
ties of  course  knew  that  the  credit  was  to  be  given  by  the  defendants, 
by  means  of  bills  of  exchange,  although  this  is  not  expressed  in  terms. 
Supposing  that  the  object  was,  that  this  credit  should  be  afforded  by 
means  of  bills  of  exchange,  to  be  drawn  by  Carnegie  &  Co.  in  Got- 
tenburg,  on  Morrison  &  Co.  in  London,  the  instrument  refers_to  the 
laws  andLugages  of  Sweden,  for  the  mode  of  drawmg,  and  to  those 
of  England  for  tlie~mode  of  acceptaiice  f  and  the  legaj  effect  and  ob- 
ligation of  the  c^onh-act  in'Boston  are,  that  the  parties  will  respectively 
conform  to  those  laws  and  usages,  in  the  performance  of  their  re- 
spective acts.  Bu^~it  is  not  as  to  the  nonobservance  of  any  of  the^, 
that  the  question  axia^s.  The  gravamen  of  the  coniplaint_is,_thaJL_tiie 
defendants  have  violated  tlie  ol7lJ£ation  of~^heir~mntrartj^Jn  its  en- 
tire substance,  ""ifbecomes"  therefore  necessary  to  inquire,  and  asce'r- 
tain  more  exactly,  what  that  contract,  in  its  legal  effect  and  operation, 
was.  The  substance  of  the  undertaking  of  the  defendants  may,  we 
think,  be  simplified  and  expressed  thus:  Whereas  John  Bradford  is 
indebted  to  Messrs.  Carnegie  &  Co.  of  Gottenburg,  in  the  sum  of 
£3,000,  and  has  requested  us  to  pay  them  that  amount  for  him,  by 
means  of  bills  of  exchange  to  be  drawn  on  us  at  London;  we  hereby, 
for  value  received  of  him  for  that  purpose,  to  our  satisfaction,  prom- 
ise to  accept  itheir  bills  to  that  amount,  payable  to  themselves  or  their 
order,  and  pay  them  accordingly. 

The  question  is,  supposing  a  general  failure  in  the  performance  of 
this  undertaking,  who  is  entitled  to  a  remedy  for  such  breach,  and  by 
what  law  shall  this  question  be  determined  ?  The  assurance  or  prom- 
ise is  in  terms  made  to  Bradford;  but  the  substantial  benefit  to  be  de- 
rived from  the  performance  of  it  would  be  the  plaintiffs',  and  there- 
fore they  are  damnified  by  the  breach.  Bradford  had  procured  the 
defendants  to  pay  his  debt  for  him  to  the  plaintiffs,  for  a  satisfactory 
pecuniary  consideration,  and  immediately  gave  notice  thereof,  and 
remitted  the  contract  to  the  plaintiffs,  who  assented  to  and  accepted 
it.  It  may  be  fairly  presumed,  that  but  for  this  transaction,  Bradford 
would  have  adopted  some  other  mode  of  remittance.  Regarding  it  as  a 
question  of  principle  and  not  of  technical  law,  it  was  an  undertaking,  in 
which  the  plaintiffs  had  an  interest,  nearly  or  quite  as  direct  and  as 
great,  as  if  the  promise  had  been  in  terms  to  them,  or  the  negotiation 
had  been  with  them;  or  as  if  the  instrument  had  been  a  promissory 
note,  procured  by  Bradford  to  be  made  payable  to  them,  in  considera- 
tion of  money  paid  and  security  given  by  him,  and  such  note  after- 
wards remitted  to  and  received  by  them.  Uppn  these  facts,  the  court 
are  of  opinion  that  the  construction,  the  obligation,  the  legal  effect 
and  opefat"ion  of  thrs'transactTOTrjrFTo^5e~  governed  "by_Jhe  law  ^f 
MassacTiusetts.  So  far  ^s"  this  transaction  constituted  a  legal  and 
binding  contract  at  all,  it  was,  we  think,  by  force  of  the  law  of  the 
place  of  contract,  operating  upon  the  act  of  the  parties,  and  giving 


Ch.    2)  OBLIGATIONS.  361 

'  it  force  as  such.  The  undeijakiftgv4t-ia_triie,  was  to  do  certain  acts 
in  Fng1and^o\vii3-to-af^:^pt-anri  E3X-lil^  plaintilTs^ljins^  5ut  the  ,  ^"^^ 
obHgation  to  flr>  tling^L-aPt';  wnr,  .crpatpH  ]^erp^  fiy  fnrce_of  the  law  of  \ 
this  sta^T'g^illgL  iorce_  and  effec^o  the  undertaking  oFthe  defend- 
ants'  agent7  and  makin-a^-it-a-CQutract  binding  on  them.  Supposing 
the  law  of^^Eiigland  had  provided  that  no  letter  of  credit  should  be 
issued,  unless  under  seal,  or  stamped,  or  attested  by  two  witnesses, 
or  acknowledged  before  a  notary;  is  it  not  clear,  that  as  no  such  for- 
malities are  required  by  our  laws,  a  letter  of  credit,  made  here,  would 
be  held  good,  without  such  formalities?  We  think  it  would  be  so 
held  even  in  England,  under  the  authority  of  the  general  rule,  that  a 
contract,  valid  and  binding  at  the  place  where  made,  is  binding  every- 
where. There  is  no  reference,  tacit  or  express,  in  this  instrument,  to 
the  laws  of  England,  which  can  raise  a  presumption,  that  the  parties 
looked  to  them  as  furnishing  the  rule  of  law,  which  should  govern 
this  contract.  It  was,  therefore,  in  our  opinion,  in  legal  effect,  a  con- 
tract made  in  Massachusetts,  by  parties  both  of  whom  were  here  by 
their  agents,  or  persons  acting  for  their  benefit  and  in  their  behalf, 
and  therefore  the  nature,  obligation  and  effect  of  this  contract  must 
be  governed  by  the  law  of  this  commonwealth.     *     *     *  x/»«fc*  *i 

(^j:^(^^'  PRITCHARD  V.  NORTON.         TU    ^  "^  J!llL9^*H-%  ^'*^- 

(Supreme  Court  of  the  United  States,  1882.     106  U.  S.  124,  1  Sup.  Ct.  102,  27     .  fv»-vJ«-i 

L.  Ed.  104.)  JU  ^"^    lATt^-^ 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of     ^   v>-*w 
Louisiana.  ^^t^  txv*»6»'r»«'-»^ 

Ex  Norton  and  H.  S.  McComb  executed  and  delivered  to  Richard  ,»-,,-a>^    *^ 

Pritchard  a  bond  of  indemnity  injhe  state  of  New  York  in  which  they     j'\/^     i,  M  U 
undertook  to  indemnify  him  against  all  loss  or  damage  arising  from  ^>rt/'  v-t>4/  i*^    ■^' 
his  liability  as  surety  on  an  appeal  bond  executed  by  him  on  behalf  a  .  (/JU^-*^ 

of  the  defendant,  appellant  in  the  suit  of  J.  P.  Harrison,  Jr.,  v.  New  4^^^z^^^-^  ,,jtjJi>'  ^• 
Orleans,  Jackson  &  Great  Northern  R.  Co.,  then  pending  in  the  Louisi-     ij3i>^  04-'****^^ 
ana  courts.     Judgment  was  rendered  on  that  appeal  against  the  rail-     ^^    Arvv4  t'^^'"*^ 
roa3  company,  in  satisfaction  of  which  R.  Pritchard  became  liable  to  #tA  vC    "•Sv 

pay  and  did  pay  the  amount  to  recover  which  this  action  was  brought    •W*-^^*'^^        ,      • 
by  Eliza  D.   Pritchard,  executrix  of  R.   Pritchard,  deceased,  against  «    j^  m^l<x^lAU  *^»^^» 
Norton.    The  defendant  set  up,  by  way  of  defense,  that  the  bond  sued  ^''*^  0 

on  was  without  consideration  and  void  under  the  laws  of  the  state  of  fjt^  '.  k^-  *-*^ 
New  York.    Judgment  for  defendant.^^  t—jL^     •    £>^* 

Matthews,  J/*"     It  is  claimed  on  behalf  of  the  plaintiff  in  error  CAi^^^^^^^  *  ' 

IB  This  statement  of  facts  has  been  substituted  for   that  of  the  original 
report. 

16A  part  of  the  opinion  has  been  omitted.  j-       I     ^      .      Ja^*\ 

<U       i».vc*U;o:.    .-^a^^^U^      ^-<n^=t^<^     ^    A^-    ^ 


362  PARTICULAR  SUBJECTS.  (Part  2 

that  by  the  law  of  Louisiana  the  pre-existing  liability  of  Pritchard 
as  surety  for  the  railroad  company  would  be  a  valid  consideratiprL_to 
support  the  promise  of  indemnity,  notwithstanding  his  liability  had  been 
incurred  without  any  previous  request  from  the  defendant.  This  claim 
is  not  controverted,  and  is  fully  supported  by  the  citations  from  the 
Civil  Code  of  Louisiana  of  1870  (articles  1893-1960)  and  the  decisions 
of  the  Supreme  Court  of  that  state.  Flood  v.  Thomas,  5  Mart.  (N.  S.) 
562;  New  Orleans  Gas  Light  &  Banking  Co.  v.  Paulding,  12  Rob. 
(La.)  378;  New  Orleans  &  C.  R.  Co.  v.  Chapman,  8  La.  Ann.  98; 
Keane  v.  Goldsmith,  12  La.  Ann.  560.  In  the  case  last  mentioned  it  is 
said  that  "the  contract  is,  in  its  nature,  one  of  personal  warranty,  recog- 
nized by  articles  378  and  379  of  the  Code  of  Practice."  And  it  was 
there  held  that  a  right  of  action  upon  the  bond  of  indemnity  accrued 
to  the  obligee  when  his  liability  became  fixed  as  surety  by  a  final  judg- 
ment, without  payment  on  his  part,  it  being  the  obligation  of  the  de- 
fendants upon  the  bond  of  indemnity  to  pay  the  judgment  rendered 
against  him,  or  to  furnish  him  the  money  with  which  to  pay  it. 

The  single  question  presented  by  the  record,  therefore,  is  whether 
the  law  of  New  York,  or  that  of  Louisiana,  defines  and  fixes  the  rights 
and  obligations  of  the  parties.  If  the  former  applies,  the  judgment  of 
the  cot^rt  below  is  correct ;  if  the  latter,  it  is  erroneous.  The  argument 
in  support  of  the  judgment  is  simple,  and  may  be  briefly  stated.  It  is 
that  New  York  is  the  place  of  the  contract,  both  because  it  was  ex- 
ecuted and  delivered  there,  and  because  no  other  place  of  performance 
being  either  designated  or  necessarily  implied,  it  was  to  be  performed 
there;  wherefore,  the  law  of  New  York,  as  the  lex  loci  contractus,  in 
both  senses  being  lex  loci  celebrationis  and  lex  loci  solutionis,  must  ap- 
ply to  determine  not  only  the  form  of  the  contract,  but  also  its  validity. 
On  the  other  hand,  the  application  of  the  law  of  Louisiana  may  be 
considered  in  two  aspects,  as  the  lex  fori,  the  suit  having  been  brought 
in  a  court  exercising  jurisdiction  within  its  territory  and  administer- 
ing its  laws,  and  as  the  lex  loci  solutionis,  the  obligation  of  the  bond  of 
indemnity  being  to  place  the  fund  for  pa3'ment  in  the  hands  of  the  sure- 
ty, or  to  repay  him  the  amount  of  his  advance,  in  the  place  where  he 
was  bound  to  discharge  his  own  liability. 

[After  holding  that  the  question  of  consideration,  whether  arising 
upon  the  admissibility  of  evidence  or  presented  as  a  point  in  pleading, 
was  not  one  of  procedure  and  remedy  but  went  to  the  substance  of  the 
right  itself,  the  learned  justice  continued  as  follows  :] 

The  phrase  lex  loci  contractus  is  used,  in  a  double  sense,  to  mean, 
sometimes,  the  law  of  the  place  where  a  contract  is  entered  into ;  some- 
times, that  of  the  place  of  its  performance.  And  when  it  is  employed 
to  describe  the  law  of  the  seat  of  the  obligation,  it  is,  on  that  account, 
confusing.  The  law  we  are  in  search  of,  which  is  to  decide  upon  the 
nature,  interpretation,  and  validity  of  the  engagement  in  question,  is 
that  which  the  parties  have,  either  expressly  or  presumptively,  incor- 


Ch.    2)  OBLIGATIONS.  363 

porated  into  their  contract  as  constituting  its  obligation.  It  has  never 
been  better  described  than  it  was  incidentally  by  Air.  Chief  Justice 
Marshall  in  Wayman  v.  Southard,  10  Wheat.  48,  6  L.  Ed.  253,  where 
he  defined  it  as  a  principle  of  universal  law — "the  principle  that  in 
every  forum  a^contract  is  governed  by  the  law  with  a  view  to  which  it 
was  made."  The  same  idea  had  been  expressed  by  Lord  Mansfield  in 
Robinson  V.  Bland,  2  Burr.  1077.  "The  law  of  the  place,''  he  said,  "can 
never  be  the  rule  where  the  transaction  is  entered  into  with  an  express 
view  to  the  law  of  another  country,  as  the  rule  by  which  it  is  to  be  gov- 
erned." And  in  Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  120,  in  the  Court  of 
Exchequer  Chamber,  it  was  said  that  "it  is  necessary  to  consider  by 
what  general  law  the  parties  intended  that  the  transaction  should  be 
governed,  or,  rather,  by  what  general  law  it  is  just  to  presume  that 
they  have  submitted  themselves  in  the  matter."  Le  Breton  v.  Aliles,  8 
Paige  (N.  Y.)  261. 

It  is  upon  this  ground  that  the  presumption  rests  that  the  contract 
is  to  be  performed  at  the  place  wdiere  it  is  made,  and  to  be  governed 
by  its  laws,  there  being  nothing  in  its  terms,  or  in  the  explanatory  cir- 
cumstances of  its  execution,  inconsistent  with  that  intention.  So,  Philli- 
more  says  (4  Int.  Law,  469)  :  "It  is  always  to  be  remembered  that 
in  obligations  it  is  the  will  of  the  contracting  parties,  and  not  the  law, 
which  fixes  the  place  of  fulfillment — whether  that  place  be  fixed  by  ex- 
press words  or  by  tacit  implication — as  the  place  to  the  jurisdiction  of 
which  the  contracting  parties  elected  to  submit  themselves."  The  same 
author  concludes  his  discussion  of  the  particular  topic  (4  Int.  Law,  §  , 
654,  pp.  470-471)  as  follows:  "As  all  the  foregoing  rules  rest  upon 
the  presumption  that  the  obligor  has  voluntarily  submitted  himself  to 
a  particular  local  law,  that  presumption  may  be  rebutted,  either  by  an 
express  declaration  to  the  contrary,  or  by  the  fact  that  the  obligation 
is  illegal  by  that  particular  law,  though  legal  by  another.  The  parties 
cannot  be  presumed  to  have  contemplated  a  law  which  would  defeat 
their  engag-ements."  This  rule,  if  universally  applicable — which  per- 
haps it  is  not — though  founded  on  the  maxim,  "Ut  res  magis  valeat 
quam  pereat,"  would  be  decisive  of  the  present  controversy,  as  con- 
clusive of  the  question  of  the  application  of  the  law  of  Louisiana,  by 
which  alone  the  undertaking  of  the  obligor  can  be  upheld.  At  all 
events,  it  is  a  circumstance  highly  persuasive  in  its  character  of  the  1  — v  u^ 
presumed  intention  of  the  parties,  and  entitled  to  prevail,  unless  con-  I 
trolled  by  more  express  and  positive  proofs  of  a  contrary  intent.  It  { 
was  expressly  referred  to  as  a  decisive  principle  in  Bell  v.  Packard,  69 
Me.  105,  31  Am.  Rep.  251,  although  it  cannot  be  regarded  as  the  foun- 
dation of  the  judgment  in  that  case.  Milliken  v.  Pratt,  125  Mass.  374, 
28  Am.  Rep.  241. 

If  now  we  examine  the  terms  of  the  bond  of  indemnity,  and  the  sit- 
uation and  relation  of  the  parties,  we  shall  find  conclusive  corroboration 
of  the  presumption  that  the  obligation  was  entered  into  in  view  of  the 
laws  of  Louisiana. 


364  PARTICULAR  SUBJECTS.  (Part   2 

)    \  kC"^^^^  ^^^  antecedent  liability  of  Pritchard,  as  surety  for  the  railroad  com- 

\J\  (a  pany  on  the  appeal  bond,  was  confessedly  contracted  in  that  state, 

^    A  '^  according  to  its  laws,  and  it  was  there  alone  that  it  could  be  perform- 

\J  ed  and  discharged.    Its  undertaking  was  that  Pritchard  should,  in  cer- 

tain contingencies,  satisfy  a  judgment  of  its  courts.  That  could  be  done 
only  within  its  territory  and  according  to  its  laws.  The  condition  of 
the  obligation,  which  is  the  basis  of  this  action,  is  that  McComb  and 
Norton,  the  obligors,  shall  hold  harmless  and  fully  indemnify  Pritchard 
against  all  loss  or  damage  arising  from  his  liability  as  surety  on  the  ap- 
peal bond.  A  judgment  was,  in  fact,  rendered  against  him  on  it  in 
Louisiana.  There  wAs  but  one  way  in  which  the  obligors  in  the  in- 
demnity bond  cdurd  perfectly'satisfy  its  warranty.  That  was,  the  mo- 
ment the  judgment  was  rendered  against  Pritchard  on  the  appeal  bond, 
to  come  forward  in  his  stead,  and,  by  payment,  to  extinguish  it.  He 
was  entitled  to  demand  this  before  any  payment  by  himself,  and  to  re- 
quire that  the  fund  should  be  forthcoming  at  the  place  where  other- 
wise he  could  be  required  to  pay  it.  Even  if  it  should  be  thought  that 
Pritchard  was  bound  to  pay  the  judgment  recovered  against  himself, 
before  his  right  of  recourse  accrued  upon  the  bond  of  indemnity,  nev- 
ertheless he  was  entitled  to  be  reimbursed  the  amount  of  his  advance 
at  the  same  place  where  he  had  been  required  to  make  it.  So  that  it 
is  clear,  be)^ond  any  doubt,  that  the  obligation  of  the  indemnity,  was, to 
be  fulfilled  in  Louisiana,  and,  consequently,  is  subject,  in  all  matters  af- 
fecting its  construction  and  validity,  to  the  law  of  that  locality. 

This  construction  is  abundantly  sustained  by  the  authority  of  judicial 
decisions  in  similar  cases. 

In  Irvine  v.  Barrett,  2  Grant,  Cas.  (Pa.)  73,  it  was  decided  that 
where  a  security  is  given  in  pursuance  of  a  decree  of  a  court  of  jus- 
tice, it  is  to  be  construed  according  to  the  intention  of  the  tribunal 
which  directed  its  execution,  and,  in  contemplation  of  law,  is  to  be  per- 
formed at  the  place  where  the  court  exercises  its  jurisdiction ;  and  that 
a  bond  given  in  another  state,  as  collateral  to  such  an  obligation,  is  con- 
trolled by  the  same  law  which  controls  the  principal  indebtedness.  In 
the  case  of  Penobscot  &  K.  R.  Co.  v.  Bartlett,  13  Gray  (Mass.)  244,  71 
Am.  Dec.  753,  the  Supreme  Judicial  Court  of  Massachusetts  decided 
that  a  contract  made  in  that  state  to  subscribe  to  shares  in  the  capital 
stock  of  a  railroad  corporation  established  by  the  laws  of  another  state, 
and  having  their  road  and  treasury  there,  is  a  contract  to  be  performed 
there,  and  is  to  be  construed  by  the  laws  of  that  state.  In  Lanusse  v. 
Barker,  3  Wheat.  146,  4  L.  Ed.  343,  this  court  declared  that  "where 
a  general  authority  is  given  to  draw  bills  from  a  certain  place,  on  ac- 
count of  advances  there  made,  the  undertaking  is  to  replace  the  money 
at  that  place." 

The  case  of  Cox  v.  United  States,  6  Pet.  172,  8  L.  Ed.  359,  was  an 
action  upon  the  official  bond  of  a  navy  agent.  The  sureties  contended 
that  the  United  States  were  bound  to  divide  their  action,  and  take  judg- 
ment against  each  surety  only  for  his  proportion  of  the  sum  due,  ac- 


Ch.    3)  OBLIGATIONS.  365 

cording  to  the  laws  of  Louisiana,  considering  it  a  contract  made  there, 
and  to  be  governed  in  this  respect  by  the  law  of  that  state.  The  court, 
however,  said:  "But  admitting  the  bond  to  have  been  signed  at  New 
Orleans,  it  is  very  clear  that  the  obligations  imposed  upon  the  parties 
thereby  looked  for  its  execution  to  the  city  of  Washington.  It  is  im- 
material where  the  services  as  navy  agent  were  to  be  performed  by 
Hawkins.  His  accountability  for  nonperformance  was  to  be  at  the 
seat  of  government.  He  was  bound  to  account,  and  the  sureties  under- 
took that  he  should  account,  for  all  public  moneys  received  by  him, 
with  such  officers  of  the  government  of  the  United  States  as  are  duly 
authorized  to  settle  and  adjust  his  accounts.  The  bond  is  given  with 
reference  to  the  laws  of  the  United  States  on  that  subject.  And  such 
accounting  is  required  to  be  with  the  treasury  department  at  the  seat 
of  government ;  and  the  navy  agent  is  bound  by  the  very  terms  of  the 
bond  to  pay  over  such  sum  as  may  be  found  due  to  the  United  States 
on  such  settlement ;  and  such  paying  over  must  be  to  the  treasury  de- 
partment, or  in  such  manner  as  shall  be  directed  by  the  secretary.  The 
bond  is,  therefore,  in  every  point  of  view  in  which  it  can  be  considered, 
a  contract  to  be  executed  at  the  city  of  Washington,  and  the  liability 
of  the  parties  must  be  governed  by  the  rules  of  the  common  law."  This 
decision  was  repeated  in  Duncan  v.  United  States,  7  Pet.  435,  8  L.  Ed. 
739. 

These  cases  were  relied  on  by  the  Supreme  Court  of  New  York  in 
Commonwealth  of  Kentucky  v.  Bassford,  6  Hill  (N.  Y.)  526.  That 
was  an  action  upon  a  bond  executed  in  New  York  conditioned  for  the 
faithful  performance  of  the  duties  enjoined  by  a  law  of  Kentucky  au- 
thorizing the  obligees  to  sell  lottery  tickets  for  the  benefit  of  a  college 
in  that  state.  It  was  held  that  the  stipulations  of  the  bond  were  to  be 
performed  in  Kentucky,  and  that,  as  it  w^as  valid  by  the  laws  of  that 
state,  the  courts  of  New  York  would  enforce  it,  notwithstanding  it 
would  be  illegal  in  that  state. 

Boyle  v.  Zacharie,  6  Pet.  635,  8  h.  Ed.  527,  is  a  direct  authority  upon 
the  point.  There  Zacharie  and  Turner  were  resident  merchants  at  New 
Orleans,  and  Boyle  at  Baltimore.  The  latter  sent  his  ship  to  New 
Orleans,  consigned  to  Zacharie  and  Turner,  where  she  arrived,  and, 
having  landed  her  cargo,  the  latter  procured  a  freight  for  her  to  Liver- 
pool. When  she  was  ready  to  sail  she  was  attached  by  process  of  law 
at  the  suit  of  certain  creditors  of  Boyle,  and  Zacharie  and  Turner  pro- 
cured her  release  by  becoming  security  for  Boyle  on  the  attachment. 
Upon  information  of  the  facts  Boyle  promised  to  indemnify  them  for 
any  loss  they  might  sustain  on  that  account.  Judgment  was  rendered 
against  them  on  the  attachment  bond,  which  they  were  compelled  to 
pay,  and  to  recover  the  amount  so  paid  they  brought  suit  in  the  Circuit 
Court  for  Maryland  against  Boyle  upon  his  promise  of  indemnity.  A 
judgment  was  rendered  by  confession  in  that  cause,  and  a  bill  in  equity 
was  subsequently  filed  to  enjoin  further  proceedings  on  it,  in  the  course 
of  which  various  questions  arose  among  them  whether  the  promise  of 


366  PARTICULAR  SUBJECTS.  '(Part  2 

indemnity  was  a  Maryland  or  a  Louisiana  contract.  Mr.  Justice  Story, 
delivering  the  opinion  of  the  court,  said:  "Such  a  contract  would  be 
understood  by  all  parties  to  be  a  contract  made  in  the  place  where  the 
advance  was  to  be  made,  and  the  payment,  unless  otherwise  stipulated, 
would  also  be  understood  to  be  made  there ;"  "that  the  contract  would 
clearly  refer  for  its -execution  to  Louisiana." 

The  very  point  was  also  decided  by  this  court  in  Bell  v.  Bruen,  1 
How.  169,  11  L.  Ed.  89.  That  was  an  action  upon  a  guaranty  written 
by  the  defendant  in  New  York,  addressed  to  the  plaintiffs  in  London, 
who  at  the  latter  place  had  made  advances  of  a  credit  to  Thorn.  The 
operative  language  of  the  guaranty  was  "that  you  may  consider  this, 
as  well  as  any  and  every  other  credit  you  may  open  in  his  favor,  as  being 
under  my  guaranty."  The  court  said:  "It  was  an  engagement  to  be 
executed  in  England,  and  must  be  construed  to  have  efTect  according  to 
the  laws  of  that  country;"  citing  Bank  of  United  States  v.  Daniel,  12 
Pet.  54,  9  L.  Ed.  989.  As  the  money  was  advanced  in  England,  the 
guaranty  required  that  it  should  be  replaced  there,  and  that  is  the  pre- 
cise nature  of  the  obligation  in  the  present  case.  Pritchard  could  only 
be  indemnified  against  loss  and  damage  on  account  of  his  liability  on 
the  appeal  bond,  by  having  funds  placed  in  his  hands  in  Louisiana 
wherewith  to  discharge  it,  or  by  being  repaid  there  the  amount  of  his 
advance.  To  the  same  effect  is  Woodhull  v.  Wagner,  Baldw.  296,  Fed. 
Cas.  No.  17,975. 

We  do  not  hesitate,  therefore,  to  decide  that  the  bond  of  indemnity 
sued  on  was  entered  into  with  a  view  to  the  law  of  Louisiana  as  the 
place  for  the  fulfillment  of  its  obligation ;  and  that  the  question  of  its 
validity,  as  depending  on  the  character  and  sufificiency  of  the  considera- 
tion, should  be  determined  by  the  law  of  Louisiana,  and  not  that  of 
New  York. 

For  error  in  its  rulings  on  this  point,  consequently,  the  judgment  of 
the  circuit  court  is  reversed,  with  directions  to  grant  a  new  trial.  New 
trial  ordered. 


Ch.    2)  OBLIGATIONS.  367 


GRAND  V.  LIVINGSTON. 

(Supreme  Court  of  New  York,  Appellate  Division,  1896.     4  App.  Div.  5S9,  38 

N.  Y.  Supp.  490.)  17 

Action  by  D.  H.  Grand  against  Johnston  Livingston,  as  president 
of  the  National  Express  Company.  On  November  4,  1894,  plaintiff 
delivered  to  the  defendant  at  Boston  a  quantity  of  horses  to  be  trans- 
ported to  and  to  be  delivered  in  Bufifalo,  N.  Y.  In  consequence  of  the 
negligence  of  the  defendant,  they  were  seriously  injured  while  in 
transit.  At  the  time  of  delivering  the  horses  to  the  defendant  for 
shipment  the  shipper  had  been  required  to  sign  a  contract  under  the 
terms  of  which  the  defendant  was  released  from  any  liability  for  in- 
jury, damage,  or  loss  to  the  horses  arising  from  defendant's  negli- 
gence.^^ 

Adams^  J.  The  question  of  the  defendant's  negligence,  as  well 
as  that  of  the  contributory  negligence  of  the  plaintiffs'  representa- 
tives, was  submitted  to  the  jury  upon  evidence  which  was  somewhat 
conflicting  in  its  character,  but  which,  it  is  conceded,  was  ample  to 
support  the  verdict;  and  the  only  question  presented  by  the  record 
which  appears  to  require  serious  examination  is  that  which  arises 
upon  the  construction  given  by  the  trial  court  to  the  release  which  is 
embodied  in  the  shipping  contract  entered  into  contemporaneously 
with  the  delivery  of  the  horses  to  the  defendant.  This  instrument 
is  as  broad  and  comprehensive  in  its  terms  as.  language  can  possibly 
make  it,  and,  if_yalid,  amounts  to  an  absolute  release  of  the  defend- 
ant from  an  liabilit)r:tor  duty  omitted,  as  well  as  for  affirmative  acts 
of  negligence,  however  gross  may  be  their  character.  Such  a  con- 
tract has  never  been  recognized  as  possessing  any  validity  in  the 
state  of  Massachusetts  (School  Dist.  in  Medfield  v.  Boston,  H.  &  E. 
R.  Co..  102  Mass.  553,  3  Am.  Rep.  503;  Pemberton  Co.  v.  New  York 
Cent.  R.  Co.,  104  Mass.  144;  Walsh  v.  New  York  &  N.  E.  R.  Co., 
160  Mass.  571,  36  N.  E.  584,  39  Am.  St.  Rep.  514) ;  while,  upon  the 
other  hand,  the  courts  of  this  state  have  held,  and  it  is  now  the  ac- 
cepted law  of  the  sitate,  that  carriers  may,  by  express  stipulation,  limit 
their  common-law  liability  to  the  extent  of  relieving  themselves  from 
the  consequences  of  their  negligent  acts.  Mynard  v.  Syracuse,  B.  & 
N.  Y.  R.  Co.,  71  N.  Y.  180,  37  Am.  Rep. -28;  Nicholas  v.  New  York 
Cent.  &  H.  R.  R.  Co.,  89  N.  Y.  370 ;  Kenney  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  135  N.  Y.  432,  36  N.  E.  636.  It  is  to  be  noted,  however, 
that  this  rule  is  applicable  to  cases  only  in  which  the  language  of  the 
contract  is  plain  and  unequivocal,  and  that  there  is  an  apparent  ten- 
dency in  the  later  decisions  to  restrict  its  operation  to  the  very  narrow- 
est possible  compass.  Our  attention  has  not  been  directed  to  any  case 
which  sanctions  so  thorotigTfr~ah"3~fadrcar  a  divesting  of  all  liability 

17 Affirmed  158  N.  Y.  688,  53  N.  B.  1125. 

18  The  statement  of  facts  has  been  somewhat  abridged. 


iV^ 


368  PARTICULAR  SUBJECTS.  (Part  2 

as  is  sought  to  be  accomplished  by  the  release  in  question,  nor  do  we 
believe  that  the  rule  ought  to  be  extended  so  as  to  exempt  the  car- 
rier from  the  consequences  of  gross  negligence,  although  it  is,  per- 
haps, unnecessary  to  express  any  opinion  upon  that  subject,  inasmuch 
as  we  are  disposed  to  consider  the  case  from  another  and  somewhat 
different  standpoint. 

The  value  which  attaches  to  the  exemption  clause  of  this  contract 
depends,  necessarily  and  in  any  event,  upon  whether  it  is  governed 
by  the  law  of  Massachusetts,  or  by  the  law  of  this  state;  and  the 
determination  of  this  question  involves  not  only  a  careful  examina- 
tion of  the  instrument  itself,  but  likewise  of  all  the  circumstances  at- 
tending its  execution.  First  in  importance,  therefore,  is  the  fact  that 
the  contract  was  executed  in  the  former  state,  and  this  of  itself  fur- 
nishes sufficient  reason  for  concluding  that  the  law  of  that  state  is 
controlling,  unless  it  is  made  to  appear  that  it  was  the  intention  of 
the  parties,  when  entering  into  the  contract,  to  be  bound  by  the  law 
of  some  other  state.  This  statement  of  the  law  of  the  place  is  one 
which  might,  perhaps,  be  safely  permitted  to  rest  upon  principle;  but 
it  is  supported  by  abundant  authority. 

In  the  case  of  Lloyd  v.  Guibert,  6  Best  &  S.  100,  it  was  said,  by  Mr. 
Justice  Willes,  in  delivering  the  judgment,  that:  "It  is  generally 
agreed  that  the  law  of  the  place  where  the  contract  is  made  is,  prima 
facie,  that  which  the  parties  intended,  or  ought  to  be  presumed  to 
have  adopted,  as  the  footing  upon  which  they  dealt,  and  that  such 
law  ought,  therefore,  to  prevail,  in  the  absence  of  circumstances  in- 
dicating a  different  intention,  as,  for  instance,  that  the  contract  is  to 
be  entirely  performed  elsewhere,  or  that  the  subject-matter  is  immov- 
able property  situated  in  another  country." 

In  another  English  case  the  same  doctrine  was  enunciated  by  Den- 
man,  J.,  in  the  following  language,  which  was  subsequently  approved 
by  the  Court  of  Appeal:  "The  general  rule  is  that,  where  a  contract 
is  made  in  England,  between  merchants  carrying  on  business  here, 
as  this  is,  but  to  be  performed  elsewhere,  the  construction  of  the  con- 
tract and  all  its  incidents  are  to  be  governed  by  the  law  of  the  country 
where  the  contract  is  made,  unless  there  is  something  to  show  that 
the  intention  of  the  parties  was  that  the  law  of  the  country  where 
the  contract  is  to  be  performed  should  prevail."  Jacobs  v.  Credit 
Lyonnais,  12  Q.  B.  Div.  589,  596,  600. 

And  this  general  rule  has  been  recognized  and  adopted  in  this 
country  by  an  almost  unbroken  line  of  decisions  of  both  the  state  and 
federal  courts,  to  some  of  which  it  may  be  advisable  to  advert  briefly. 

In  the  case  of  McDaniel  v.  Chicago  &  N.  W.  Ry.  Co.,  24  Iowa,  412, 
which  was  quite  similar  in  its  main  features  to  the  one  at  bar,  and 
in  which  it  appears  that  the  cattle  transported  by  a  railroad  company 
from  a  place  in  Iowa  to  a  place  in  Illinois,  under  a  special  contract 
made  in  the  former  state,  containing  a  stipulation  that  the  company 
should  be   exempt   from  liability    for   any   damage,   unless   resulting 


Ch.    2)  OBLIGATIONS.  369 

from  collision  or  derailing  of  trains,  were  injured  in  Illinois  by  the 
negligence  of  the  company's  servants,  it  was  held  that  the  case  was  to 
be  governed  by  the  law  of  Iowa,  which  permitted  no  common  car- 
rier to  exempt  himself  from  the  liability  which  would  exist  in  the  ab- 
sence of  the  contract.  The  court.  Chief  Justice  Dillon  presiding,  said : 
"The  contract  being  entire  and  indivisible,  made  in  Iowa,  and  to  be 
partly  performed  here,  it  must,  as  to  its  validity,  nature,  obligation, 
and  interpretation,  be  governed  by  our  law." 

So,  too,  in  Pennsylvania  Co..  v.  Fairchild,  69  111.  260,  where  a  rail- 
road company  received,  in  Indiana,  goods  consigned  to  a  party  in 
Leavenworth,  Kan.,  and  which  were  destroyed  by  fire  while  in  transit, 
the  court  held  that  the  case  must  be  governed  by  the  law  of  Indiana, 
by  whicn  one  of  the  carriers  was  not  liable  for  the  loss  of  goods  after 
they  passed  into  the  custody  of  a  connecting  line;  while,  as  early 
as  1832,  Mr.  Justice  Thompson,  of  the  United  States  Supreme  Court, 
in  Cox  V.  United  States,  6  Pet.  172,  8  L.  Ed.  359,  applied  the  same 
rule,  which  has  been  frequently  reiterated  by  that  court  down  to  the 
present  time.  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129 
U.  S.  397,  9  Sup.  Ct.  469,  32  L.  Ed.  788. 

The  cases  in  our  own  state  which  contain  express  recognition  of 
this  rule  are  very  numerous,  and  it  can  hardly  be  necessary  or  profit- 
able to  cite  more  than  one  or  two  of  them. 

In  Dyke  v.  Erie  Ry.  Co.,  45  N.  Y.  113,  116,  6  Am.  Rep.  43,  it  was 
said,  by  Allen,  J. ;  "The  lex  loci  contractus  determines  the  nature, 
validity,  obligation,  and  legal  efl'ect  of  the  contract,  and  gives  the  rule 
of  construction  and  interpretation,  unless  it  appears  to  have  been  made 
with  reference  to  the  laws  and  usages  of  some  other  state  or  govern- 
ment, as  when  it  is  to  be  performed  in  another  place ;  and  then,  in 
conformity  to  the  presumed  intention  of  the  parties,  the  law  of  the 
place  of  performance  furnishes  the  rule  of  interpretation." 

And  in  China  Mut.  Ins.  Co.  v.  Force,  142  N.  Y.  90-100,  36  N.  E. 
874,  40  Am.  St.  Rep.  576,  it  is  said  that:  "The  obligation  of  the  ship- 
pers of  the  cargo  is  to  be  determined  by  the  law  of  the  place  where  the 
contract  of  affreightment  was  made." 

If,  then,  the  rule  which  has  been  thus  far  considered  is  applied  to 
this  case,  it  follows  that  the  release  under  which  the  defendant  seeks 
to  escape  liability  must  be  given  effect  and  construed  under  the 
law  which  obtains  in  Massachusetts,  unless  it  can  be  fairly  said  that 
the  parties  thereto,  at  the  time  of  executing  the  same,  clearly  man- 
ifested an  intentioh  that  it  should  be  governed  by  the  law  of  this  state, 
which  intention,  it  may  be  added,  must  have  been  entertained  by  both 
of  them.  And,  as  we  have  seen  that  the  law  where  it  was  executed 
affords  prima  facie  evidence  of  the  intent  of  the  parties,  the  burden 
would  seem  to  rest  upon  the  defendant  of  overcoming  the  presump- 
tion thus  created,  by  satisfactory  proof. 

It  was  said  by  Andrews,  Chief  Judge,  in  the  Nicholas  Case,  supra, 
LoR.CoNF.L.— 24 


370  PARTICULAR  SUBJECTS.  (Part  2 

that:  "The  circumstances  under  which  contracts  of  this  kind  are  usu- 
ally  made  preclude  a  careful  consideration,  by  the  shipper,_of_their 
language  and  effect." 

And  for  this  reason,  as  was  suggested  upon  the  argument,  the  ques- 
tion of  intent  can  hardly  be  said  to  involve  the  actual  mental  opera- 
tions of  the  parties.  For,  as  a  matter  of  fact,  they  probably  did  not 
stop  to  consider  what  was  the  legal  effect  of  their  agreement,  or 
whether  there  was  any  diversity  in  the  law  of  the  two  states;  and, 
therefore,  when  we  speak  of  the  "question  of  intent," -we  are  making 
use  of  what  may  perhaps  be  termed  a  "legal  fiction" ;  but,  neverthe- 
less, the  law  does  look  at  the  acts  of  the  parties,  and  the  circumstances 
surrounding  them,  which  fnay  possibly  have  exerted  some  influence 
upon  their  actions,  and  then  assumes  that  their  intention  is  in  harmony 
with  such  acts  and  circumstances. 

The  facts  relied  upon  by  the  defendant  as  indicating  an  intention 
to  bring  the  contract  within  the  operation  of  the  law  of  this  state 
are:  (1)  That  this  state  is  the  legal  residence  of  the  defendant,  and 
the  actual  residence  of  the  plaintiffs;  (2)  that  the  contract,  so  far 
as  delivery  is  concerned,  was  to  be  performed  in  this  state;  and  (3) 
that  no  effect  could  be  given  to  the  provisions  of  the  contract,  if  the 
same  is  to  be  interpreted  by  the  law  which  obtains  in  the  state  where 
it  was  executed.  It  is  undoubtedly  a  well-settled  rule  of  construc- 
tion that  meaning  and  effect  shall  be  given  to  all  of  the  language  em- 
ployed in  a  contract,  provided  it  can  be  done  without  violence  to  the 
plain  object  and  intent  of  the  parties  thereto.  Buffalo  E.  S.  R.  Co.  v. 
Buffalo  St.  R.  Co.,  Ill  N.  Y.  132,  19  N.  E  63,  2  L.  R.  A.  284.  And 
if  this  contract  was  one  which  had  been  drawn  up  at  the  time  of  its 
execution,  to  express  the  intention  of  the  parties  in  this  particular 
transaction,  it  might  be  urged,  with  considerable  force,  that  the  law 
of  this  state  should  be  invoked,  in  order  that  effect  might  be  given 
to  all  its  provisions ;  but  it  appears  that  the  agreement  was  completed 
by  filling  up  a  blank  form  with  such  words  as  were  necessary  to  fit 
the  occasion,  and,  presumably,  just  such  a  form  as  was  used  by  the 
company  in  its  business  throughout  the  entire  country,  or  wherever  it 
had  an  office.  And  this  circumstance  must  be  regarded  as  lessening 
somewhat  the  force  which  might  otherwise  attach  to  the  defendant's 
contention  in  this  regard.  The  residence  of  the  parties,  and  the  fact 
that  the  contract,  by  its  terms,  was  to  be  partly  performed  within  this 
state,  are  certainly  circumstances  which  might  very  properly  be  con- 
sidered in  determining  the  question  of  intent,  and  which  might,  per- 
haps, prove  efficient  aids  to  the  court  in  its  effort  to  reach  a  correct 
solution  thereof,  were  there  nothing  in  the  case  to  counterbalance 
them ;  but,  in  considering  this  question,  two  distinct  facts  or  circum- 
stances are  made  prominent,  either  one  of  which,  we  think,  is  suffi- 
cient to  overcome  any  inference  which  may  be  properly  drawn  from 
those  relied  upon  by  the  defendant,  and  which  have  just  been  ad- 
verted to. 


Ch.    2)  OBLIGATIONS.  371 

It  has  alread}'  been  stated  that,  when  these  horses  were  shipped,  it 
was  arranged  that  two  representatives  of  the  plaintiffs  should  accom- 
pany them  upon  their  trip  to  Buffalo.  This,  it  seems,  was  required, 
as  one  of  the  conditions  of  transporting  the  horses,  and  no  additional 
fare  was  charged  for  these  men ;  but  they,  too,  were  obliged  to  enter 
into  a  contract  with  the  express  company  absolving  it  from  all  lia- 
bility for  injury  to  their  person  or  property.  This  supplemental  re- 
lease was  indorsed  upon  the  back  of  the  original  contract,  and  in  that 
the  defendant  was  careful  to  insert  a  clause  expressly  providing  that 
any  question  arising  thereunder.,  should  "be  determined  by  the  law 
of  the  state  of  New  York."  This  certainly  furnishes  sufficient  evi- 
dence~to  justify  the  conclusion  that,  when  the  defendant  desired  to 
bring  any^cohtract  within  the  operation  of  the  law  of  a  particular 
state,  it  was  aware  of  the  importance  and  necessity  of  expressing  such 
design  in  language  which  was  incapable  of  misconstruction;  and 
therefore  itsomissionjo  insert  a  similar  provision  in  its  original  con- 
tract possesses  a  significance  which  cannot  be  disregarded  in  the  ef- 
fort to  ascertain  the  intent  of  at  least  one  of  the  parties  thereto. 

The  other  circumstance,  to  which  allusion  has  been  made,  arises 
out  of  the  fact  that  to  give  to  this  contract  the  construction  contended 
for  by  the  defendant  would  make  a  contract  for  the  plaintiffs  which, 
to  say  the  least,  is  a  very  unreasonable  one,  and  which  would  place 
them  entirely  at  the  mercy  of  the  defendant.  And  this,  in  the  ab- 
sence of  any  other  circumstance,  would,  in  our  opinion,  aft"ord  suffi- 
cient reason  for  refusing  such  a  construction.  Russell  v.  Allerton, 
108  N.  Y.  288,  15  N.  E.  391. 

We  think  that  the  case  was  properly  disposed  of  at  the  circuit,  and 
that  no  sufficient  ground  is  presented  for  interfering  with  the  result 
reached,  and  that  the  judgment  and  order  appealed  from  should  there- 
fore be  affirmed,  with  costs. 

Judgment  and  order  affirmed,  with  costs.    All  concur. 


HOME  LAND  &  CATTLE  CO.  v.  McNAMARA. 

(Circuit  Court  of  Appeals,  Seventh  Circuit,  190G.    145  Fed.  17,  7G  C.  C.  A.  47.) 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
Division  of  the  Northern  District  of  Illinois. 

Grosscup,  Circuit  Judge.^^  This  case — an  action  at  law  in  the  Cir- 
cuit Court  to  recover  the  purchase  price  of  cattle  delivered  by  plaintiff 
in  error  to  defendants  in  error — was  here  once  before  (McNamara 
&  Marlow  v.  Home  Land  &  Cattle  Co.,  121  Fed.  797,  58  C.  C.  A.  245) 
the  judgment  of  the  court  below  being  reversed,  chiefly  because  Mc- 

^»A  part  of  the  opinion  not  relating  to  the  Conflict  of  Laws  has  been 
omitted. 


372  PARTICULAR  SUBJECTS.  (Part  2 

Namara  and  Marlow  had  been  excluded  from  showing-  damages  suf- 
fered by  them  in  the  failure  of  the  Home  Land  and  Cattle  Company 
to  perform  the  ninth  paragraph  of  the  agreement  between  them. 

On  the  second  trial  this  error  was  corrected;  but  in  its  correction, 
instead  of  permitting  McNamara  and  Marlow  to  prove  the  actual  dam- 
ages suffered  by  them,  by  plaintiff  in  error's  failure  to  perform,  they 
were  allowed  the  sums  stipulated  in  the  paragraph  as  liquidated  dam- 
ages— the  jury  being  practically  instructed  to  accept  the  stipulated  sum 
as  the  measure  of  damages.  And  upon  this  action  of  the  court  below, 
exceptions  having  been  duly  preserved,  this  proceeding  in  error  is 
chiefly  based. 

The  ninth  clause  of  the  contract  is  as  follows: 

"Ninth.  Said  first  party  hereby  guarantees  to  deliver  to  said  second 
parties  during  the  season  of  1897  not  less  than  nine  thousand  head 
(9,000)  of  steers  of  the  ages  of  three  years  old  and  up,  and  spayed 
heifers  of  the  ages  of  four  years  and  up.  Should  they  fail  so  to  do, 
they  hereby  agree  to  pay  to  said  second  parties  the  sum  of  twenty  dol- 
lars ($20.00)  in  cash  for  each  and  every  head  less  than  nine  thousand 
(9,000)  head  of  such  cattle  so  delivered." 

The  statute  of  Montana  (Civ.  Code,  1895)  in  force  at  the  time  the 
agreement  was  made  and  the  case  tried,  contains  the  foUowing  provi- 
sion: 

"Section  2243.  Every  contract  by  which  the  amount  of  damage  to 
be  paid,  or  other  compensation  to  be  made,  for  a  breach  of  an  obliga- 
tion, is  determined  in  anticipation  thereof,  is  to  that  extent,  void,  ex- 
cept as  expressly  provided  in  the  next  section. 

"Section  2244.  The  parties  to  a  contract  may  agree  therein  upon  an 
amount  which  shall  be  presumed  to  be  the  amount  of  damage  sustained 
by  a  breach  thereof,  when,  from  the  nature  of  the  case,  it  would  be  im- 
practicable or  extremely  difficult  to  fix  the  actual  damage." 

In  Illinois  there  is  no  statute  upon  the  subject. 

Two  questions,  therefore,  are  raised.  First:  Is  the  ninth  clause  of 
the  agreement  to  be  governed  by  the  law  of  Montana,  or  by  the  law  of 
Illinois?  And  if  it  be  governed  by  the  law  of  IMontana,  Secondly: 
Was  the  subject-matter  of  the  contract  one  in  which  damages  would  be 
impracticable  or  difficult  to  ascertain? 

The  contract  was  made  in  Illinois,  but  the  subject-matter  of  the  con- 
tract was  the  purchase  and  sale  of  cattle  then  in  Montana,  to  be  de- 
livered by  the  seller  to  the  buyer  in  Montana.  The  contract,  therefore, 
especially  in  its  main  provision,  was  one  to  be  executed  in  Montana. 

When  confronted  with  the  inquiry  under  what  law  a  specific  con- 
tract is  to  be  interpreted  and  enforced,  the  principle  that  governs  is 
this :  In  view  of  what  law  was  the  contract  made.  Wayman  v.  South- 
ard, 10  Wheat.  1,  48,  6  L.  Ed.  253.  And  apart  from  any  circumstance 
other  than  the  contract  itself,  we  think  it  obvious  that  the  law  in  view 
was  the  Montana  law,  where  the  contract  was  to  be  executed.  Such, 
apparently,  was  the  understanding  of  defendants  in  error,  for  they 


i 


Ch.    2)  OBLIGATIONS.  ^  373 

asked  and  obtained  interest  upon 'the  default,  according-  to  the  rates 
allowed  by  the  laws  of  Montana.  And  such  must  have  been  the  view 
of  the  court  below,  for  the  interest  was  allowed  according  to  the  Mon- 
tana law.  Indeed,  other  considerations  being  equal,  the  presumption 
is  that  the  law  where  the  performance  is  to  take  place  is  the  law 
under  which  the  performance  shall  be  governed. 

But  it  is  argued,  on  the  authority  of  Pritchard  v.  Norton,  106  U.  S. 
134,  1  Sup.  Ct.  102,  27  L.  Ed.  104,  that  assuming  that  the  law  of  Mon- 
tana forbade  that  portion  of  the  contract  relating  to  liquidated  dam- 
ages, such  circumstance,  alone,  shows  that  the  law  of  Montana  was  not 
in  the  view  of  the  parties,  but  that,  within  their  view,  the  contract  was 
to  be  governed  by  the  law  of  Illinois,  where  the  contract  was  made,  and 
where  no  such  prohibition  exists.  Pritchard  v.  Norton  did  not  involve, 
however,  the  validity  or  invalidity  of  a  mere  subsidiary  part  of  a  larger 
contract.  The  question  presented  in  that  case  was  the  validity  or  in- 
validity of  the  whole  contract.  Did  the  sale  and  purchase  of  these  cat- 
tle, as  an  entirety,  depend  for  validity  upon  whether  the  contract  was 
to  be  governed  by  the  Montana  law  or  the  Illinois  law,  Pritchard  v. 
Norton  would  perhaps  be  in  point.  But  such  is  not  the  case.  The 
sale  and  purchase  here  involved  is  valid  under  the  law  of  either  state. 
Damages  for  failure  to  perform  follow  under  the  law  of  either  state. 
It  is  to  the  measure  of  damages  alone — an  incident  only  to  the  general 
and  greater  purpose  of  the  contract  as  an  entirety — that  the  circum- 
stance relates ;  a  circumstance  that  cannot  be  accepted  as  showing  that 
the  parties  meant  that  the  whole  contract  should  be  determined  by  the 
law  of  a  state  other  than  that  where  the  whole  contract  was  to  be  per- 
formed.    *     *     * 

The  view  already  expressed,  that  the  contract  as  an  entirety  is  to  be 
governed,  under  the  circumstances  shown,  by  the  laws  of  Montana, 
disposes  of  the  question  of  the  rate  of  interest  involved,  the  only  other 
question  that  in  view  of  a  new  trial  needs  to  be  decided.  On  the  ques- 
tion of  interest  the  court  below  was  not  in  error. 

The  judgment  of  the  court  below  is  reversed,  with  instructions  to 
grant  a  new  trial. 


DAVIS  V.  ^TNA  MUT.  FIRE  INS.  CO. 

(Supreme  Court  of  New  Hampshire,  1892.    67  N.  H.  218,  34  Atl.  464.) 

Assumpsit,  on  policies  of  insurance  against  fire.  Facts  agreed. 
The  plaintiff,  at  the  date  of  the  policies  was,  and  still  is,  a  resi- 
dent  of  Massachusetts,  and  the  property  insured  is  situate  in  Massachu- 
setts. The  defendant  companies  were  organized  under  the  laws  of  Ne^ 
Hampshire,  and  their  principal  place  of  business  is  in  New  Hampshire. 
The  plaintiff  applied  for  insurance  to  a  broker  in  Massachusetts,  who 
applied  to  brokers  in  Indiana,  and  they  sent  applications  to  the  defend- 


374  ,  PARTICULAR  SUBJECTS.  (Part   2 

ants  at  Concord,  N.  H.,  and  the  pfolicies  were  there  made.  The  de- 
fendant companies  issue  two  forms  of  poHcies — one,  the  New  Hamp- 
shire standard  form,  which  they  issue  to  cover  risks  on  property  situate 
in  New  Hampshire ;  the  other,  Hke  the  poHcies  in  suit,  which  is  not  the 
New  Hampshire  standard  form,  and  does  not  contain  the  statute  laws 
of  New  Hampshire  or  any  reference  thereto,  this  form  being  used  by 
them  only  on  property  situate  outside  of  New  Hampshire.  The  poli- 
cies in  suit  contain  certain  provisions  which  are  invalid  if  the  contracts 
are  governed  by  the  statutes  of  New  Hampshire,  and  the  defendants 
set  up  defenses  based  upon  such  provisions.  If  the  ^iontracts  are  held 
to  Fe  Massachus^etts  contracts,  or  not  to  be  construed  in  accordance 
with  the  New  Hampshire  statutes,  the  cases  are  to  stand  for  trial ; 
otherwise,  the  plaintiff  is  to  have  judgment. 

Blodge-TT,  J.  The  policies  ia.  suit  having  been  made  at  the  de- 
fendants' office  in  this  state,  on  applications  received  by  mail,  the  "con- 
tracts becam.e  complete  when  the  policies  were  deposited  in  the  mail 
to  be  forwarded  to  the  insurance  brokers  from  whom  the  applications 
were  received  (Abbott  v.  Shepard,  48  N.  H.  14;  Tayloe  v.  Merchants' 
Fire^TiisTCo.,  9  How.  (U.  S.)  390,  13  L.  Ed.  187;  Shattuck  v.  Mutual 
Life  Ins.  Co.,  4  Cliff.  (U.  S.)  598,  Fed.  Cas.  No.  12,715;  Utley  v. 
Donaldson,.  94  U.  S.  29,  45,  24  L.  Ed.  54;  Eames  v.  Home  Ins.  Co.,  94 
U.  S.  621,  24  L.  Ed.  298 ;  Bailey  v.  Hope  Ins.  Co.,  56  Me.  474)  ;  and, 
as  the  general  rule  is  that  the  law  of  the  place  where  the  contract  is 
made  is  to  govern  as  to  its  nature,  validity,  construction,  and  effect 
(Stevens  v.  Norris,  30  N.  H.  466,  470),  prima  facie  the  contracts  in 
question  are  New  Hampshire  contracts,  and  are  to  be  interpreted  ac- 
cordingly. If,  however,  the  parties  to  a  contract  have  a  view  to  its 
being  executed  elsewhere,  it  is  to  be  governed  according  to  the  laws  of 
the  place  where  it  is  to  be  executed.  Cox  v.  United  States,  6  Pet.  (U. 
S.)  172,  203,  8  L.  Ed.  359 ;  Warder  v.  Arell,  2  Wash.  (Va.)  282,  1  Am. 
Dec.  488;  Bish.  Cont.  §  731,  and  authorities  cited.  "The  primary  rule 
in  all  expositions  of  this  sort  is  that  of  common  sense."  Story,  Confl. 
Laws,  §  270.  The  object  is  to  ascertain  the  real  intention  of  the  par- 
ties ;  and,  to  ascertain  that  intention,  regard  may  be  had  to  the  nature 
of  the  instrument  itself,  the  situation  of  the  parties  executing  it,  and 
the  purpose  they  had  in  view.  Corwin  v.  Hood,  58  N.  H.  401 ;  Dyer  v. 
Hunt,  5  N.  H.  401,  405.  In  short,  the  intention  is  to  be  ascertained 
from  all  competent  evidence.    Crawford  v.  Parsons,  63  N.  H.  438. 

Applying  these  rules  to  the  contracts  under  consideration,  there  is 
little,  if  any,  room  for  doubt  or  disputation  that  the  parties  intended 
that  they  should  be  governed  by  the  law  of  Massachusetts.  The  prop- 
erty covered  by  the  policies  was  located  in  that  state.  The  assured 
resided  there.  The  New  Hampshire  standard  form  of  policy  was  not 
used.  The  parties  did  not  agree  to  be  bound  by  that  form,  but  they 
did  agree  to  be  bound  by  a  special  and  radically  different  form,  which 
is  used  by  the  defendants  "only  upon  property  situated  outside  of  New 
Hampshire."    These  facts  afford  competent  evidence  and  satisfactory 


Ch.    2)  OBLIGATIONS.  375 

proof  that  the  intention  of  the  defendants  was  to  contract  with  refer- 
ence to  the  laws  of  Massachusetts ;  and  the  inference  is  equally  strong 
that  the  intention  of  the  plaintiff  was  not  otherwise.  The  contracts  are 
to  be  construed  by  the  laws  of  INIassachusetts.     Case  discharged. 


in 


-+-,^^ 


ARBUCKLE  v.  REAUME.  '''^'^^^'^^IjJ^' 

(Supreme  Court  of  Michigan,  1893.    96  Mich.  243,  55  N.  W.  SOS.)         y7  •^'  ^ 

Long,  J.  This  action  was  brought  to  recover  upon  two  promis-0-^' 
sory  notes,  dated  February  4,  1889,  and  executed  and  delivered  to  the 
plaintiffs'  agent  in  this  state,  but  payable  at  plaintiffs'  office,  at  Toledo, 
Ohio:  The  defendant  Peter  Donnelly  pleaded  the  general  issue,  and 
denied  the  execution  of  the  notes.  The  other  defendants  did  not  ap- 
pear, and  were  defaulted.  It  was  admitted  that,  while  the  notes  bore 
date  as. of  Monday,  they  were  in  fact  executed  and  delivered  to  the 
agent  of  the  payee  in  this  state  on  Sunday.  The  court  below  ruled 
that,  though  the  notes  were  executed  and  delivered  in  this  state  on 
Sunday,,  yet,  the  testimony  showing  that  the  office  of  the  plaintiff's  was 
in  Ohio,  and  the  contract  to  be  performed  there,  that  they  were  not 
void,  under  section  2015,  How.  St.,  as  the  laws  of  Ohio,  and  not  of 
Michigan,  governed  the  transaction ;  and  judgment  was  given  in  favor 
of  the  plaintiffs.  It  was  not  shown  upon  the  trial  what  the  statute 
laws  of  the  state  of  Ohio  were.  The  only  contention  upon  this  record 
is  whether  the  question  is  to  be  determined  by  the  law  of  the  place 
where  the  notes  were  executed  and  delivered  or  by  the  law  of  the  state 
where  made  payable.  The  notes  were  given  for  machinery.  The 
contract  of  sale  was  made  in  this  state,  and  the  property  delivered  here. 
The  notes  were  taken  by  the  plaintiff's'  agent  on  the  delivery  of  the 
machinery;  the  whole  transaction  being  closed  on  Sunday.  How. 
St.  §  2015,  provides:  "No  person  shall  keep  open  his  shop,  ware- 
house, or  workhouse,  or  shall  do  any  manner  of  labor,  business,  or 
work,  or  be  present  at  any  dancing,  or  at  any  public  diversion,  show, 
or  entertainment,  or  take  part  in  any  sport,  game,  or  play,  on  the 
first  day  of  the  week.  The  foregoing  provisions  shall  not  apply  to 
works  of  necessity  and  charity,  nor  to  the  making  of  mutual  promises 
of  marriage,  nor  to  the  solemnization  of  marriages.-  And  every  per- 
son so  offending  shall  be  punished  by  fine  not  exceeding  ten  dollars 
for  each  offense."  In  Adams  v.  Hamell,  2  Doug.  (Mich.)  73,  43  Am. 
Dec.  455,  it  was  held  by  this  court  that  a  note  made  on  Sunday  was 
void,  under  the  provisions  of  the  statute  of  1838.  which  are  similar 
to  the  provisions  of  How.  St.,  above  quoted.  In  Tucker  v.  Mowrey, 
12  Mich.  378,  this  court,  approving  Adams  v.  Hamell,  said:  "The 
statute  not  only  makes  it  a  penal  offense,  but  takes  away  the  legal  ca- 
pacity of  the  parties  to  make  a  contract  on  that  day;    and,  whether 


V^'^ 


376  PARTICULAR  SUBJECTS.  (Part  2 

the  supposed  contract  has  been  executed  or  remains  executory,  we 
think  the  rights  of  the  parties  are  to  be  determined  in  the  same  manner 
--^  as  if  no  such  contract  had  ever  been  made."  The  court  belpv/, was  in 
,\X  error  in  holding  that  the  notes  could  be  enforced  here  by  reason  of  being 
made  payable  in  Ohio.  Parties  cannot  be  allowed  to  defy  our  laws, 
an(i\recover  upon  a  contract  void  from  its  inception  under  our  statute, 
by  making  the  place  of  payment  out  of  the  state.  It  is  an  elementary 
principle  that  one  who  has  himself  participated  in  a  violation  of  law 
cannot  be  permitted  to  assert  in  a  court  of  justice  any  right  founded 
upon  or  growing  out  of  the  illegal  transaction.  7  Wait,  Act.  &  Def.  p. 
114;  Myers  v.  Meinrath,  101  Mass.  366,  3  Am.  Rep.  371.  The  judg- 
ment must  be  reversed,  and  a  new  trial  ordered.  The  other  justices 
concurred.^  ^ 


BROWN  V.  GATES. 

(Supreme  Court  of  Wisconsin,  1903.    120  Wis.  349,  97  N.  W.  221,  98  N.  W.  205.) 

This  action  is  brought  by  plaintiffs  as  copartners  to  recover  on  two 
notes  made  by  defendant,  each  of  $5,000,  with  interest,  dated  January 
12,  1895,  payable  to  plaintiffs,  or  order,  on  or  before  18  months  after 
date  at  their  office  in  Boston,  Mass.  The  defendant  admits  the  mak- 
ing of  the  notes,  and  that  there  was  a  manual  tradition  of  the  same. 
He  averSj_however,  that  the  notes  were  in  fact  made,  executed  and 
delivered  on  Sunday,  January  13,  1895,  under  a  parol  agreement 
whereby  it  was  understood  that  the  notes  were  to  have  no  validity 
until  he  realized  in  cash  on  his  interest  in  the  lands  which  were  the 
subject-matter  of  the  transactions  through  which  the  notes  came  into 
existence.  The  action  was  tried  before  a  jury,  which  rendered  a  spe- 
cial verdict  on  the  disputed  facts  in  the  case.  The  undisputed  facts 
in  the  case  are  that  plaintiffs  at  the  date  of  the  notes  were  the  owners 
of  a  large  tract  of  Florida  land,  for  which  defendant  procured  one 
John  Paul  as  prospective  purchaser  before  these  notes  were  made. 
On  January  10,  1895,  plaintiff  Brown  and  defendant  met,  pursuant 
to  an  arrangement,  at  a  hotel  in  the  city  of  New  York,  with  the  view 
of  consummating  a  sale  of  these  lands  to  John  Paul,  who  met 
with  them_j6h  the  following  day.  The  negotiations  resulted  in  an 
agreement  that  Paul  should  purchase  the  lands.  This  agreement  was 
reached  on  Saturday,  January  12th,  and  consummated  on  the  follow- 
ing Monday.  It  is  averred  that  it  was  a  condition  of  this  transfer 
to  Mr.  Paul  that  the  defendant  should  retain  a  one-sixth  interest  in 
the  lands.  It  is  not  disputed  but  that  Brown  and  defendant,  made 
some   arrangements   pertaining  to   this  transaction,    resulting   in   the 

21  Accord:  Brown  v.  Browning,  15  R.  I.  422,  7  Atl.  403,  2  Am.  St.  Rep.  90S 
nSSG).  Compare  Western  Union  Telegraph  Co.  v.  Way,  83  Ala.  542,  4  Soutn. 
844  (1887). 


V'>- 


Ch.   2)  OBLIGATIONS.  377 

notes  in  question  being  made  on  Sunday,  January  13th.  Among  oth- 
er facts  the  jury  found  that  the  notes  were  dehvered  to  Brown  for 
plaintiffs  in  the  city  of  New  York  on  this  Sunday.  Upon  the  ver- 
dict, judgment  was  rendered  in  plaintiffs'  favor  for  the  full  amount, 
with  costs,  with  some  condition  as  to  its  enforcement.  From  this  judg- 
ment both  parties  appeal. 

SiEBHCKER,  J.  The  defendant  avers  that  the  notes  sued  on  by  plain- 
tiffs were  executed  and  delivered  on  Sunday,  and  are  therefore  void 
in  ]aw.  As  stated,  there  is  no  dispute  but  that  the  notes  were  sign- 
ecT  by  defendant  on  Sunday,  January  13,  1895.  The  jury  found  they 
were  delivered  to  plaintiffs  on  the  same  .day.  For  this  reason  de- 
fendant contends  they  are  void  in  plaintiffs'  hands.  Courts  have  re- 
fused to  maintain  actions  on  contracts  when  made  in  violation  of 
statutes  for  the  observance  of  Sunday,  and  have  declared  them  void 
as  between  the  parties.  HiU  v.  Sherwood,  3  Wis.  343;  Troewert  v. 
Decker,  51  Wis.  46,  8  N.  W.  26,  37  Am.  Rep.  808;  Ainsworth  v. 
Williams,  111  Wis.  17,  86  N.  W.  551 ;  Cranson  v.  Goss,  107  Mass. 
439,  9  Am.  Rep.  45.  The  question,  then,  arises,  were  these  notes 
made  in  violation  of  the  law  which  prohibits  the  making  of  such  con- 
tracts on  Sunday?  This  presents  an  inquiry  as  to  the  place  of  con- 
tract oLthese_  notes.  It  is  the  general  rule  at  common  law  that  per- 
sonal contracts^  are  to  be  deemed  contracts  of  the  state  or  country 
where  they  are  actually  made.  A  well-established  exception  occurs, 
however,^  wEeh  a  contract  declares  specifically,  or  it  appears  by  im- 
plication, that  it  is^  to  be  performed  or  paid^n  another  state  or  coun-  _  7 
try.  Then  its/^lidity^  nature,  obhgation,  and  effect  is  to  be  govern- 
ed by  the  law  of  tlTe  place  of  payment  or  performance.  The  grounds 
of  this  exception  are  that  the  presumed  intention  of  the  parties  is 
that  it  shall  be  deemed  to  be  a  contract  of  the  place  of  payment  or 
performance,  unless  such  presumption  is  rebutted  by  the  facts  and 
•circumstances  surrounding  the  making  and  the  performance  or  pay- 
ment. Under  such  circumstances  the  fact  that  notes  are  made  pay- 
able at  the  place  of  the  domicile  of  the  payee  is  held  to  be  very  per-  a  }^j(^ 
suasive  evidence  of  the  intention  of  the  parties  that  it  was  to  be  a  '  ' 
contract  of  the  place  of  payment.  The  intention  thus  expressed  has 
been  commonly  held  so  conclusive  in  its  effect  that  it  must  prevail 
unless  it  is  made  to  appear  that  it  would  invalidate  the  contract,  and  ,  ,: 
that  the  parties  intended  to  avoid  such  a  result.  Of  the  many  au- 
thorities in  support  of  these  principles,  the  following  may  be  cited : 
Bartlett  v.  Collins,  109  Wis.  477,  85  N.  W.  703,  83  Am.  St^  Rep.  928 ; 
Shores  Lumber  Co.  v.  Stitt,  102  Wis.  450,  78  N.  W.  562;  Hill  v. 
Spear,  50  N.  H.  253,  9  Am.  Rep.  205 ;  Sondheim  v.  Gilbert,  117  Ind. 
71,  18  N.  E.  687,  5  L.  R.  A.  432,  10  Am.  St.  Rep.  23 ;  Dickinson  v. 
Edwards,  77  N.  Y.  573,  33  Am.  Rep.  671 ;  Story's  Conflict  of  Laws, 
§§  27Sa,  280;  Daniel,  Negotiable  Instruments,  §  865;  Wood's  Byles 
on  Bills  &  Notes,  p.  570.  This  conclusion  in  no  way  mihtates  against 
the  decision  of  this  court  in  Newman  v.  Kershaw,  10  Wis.  333.     In 


378  PARTICULAR  SUBJECTS.  (Part  2 

that  case  it  was  held  that  the  place  of  payment  as  evidence  of  the 
intention  of  the  parties  that  the  law  of  that  place  is  to  govern  was 
overcome  by  the  actual  facts  and  circumstances  of  the  case.  An  ex- 
amination of  the  case  will  show  a  marked  difference  in  the  facts  of 
the  two  cases.  In  the  instant  case  we  have  an  incidental  meeting 
of  the  maker  and  payee  of  the  notes  in  the  city  of  New  York,  one 
of  whom  is  domiciled  in  Massachusetts  and  the  other  in  Wisconsin; 
the' subject-matter  of  the  contract  out  of  which  these  notes  arose  be- 
ing a  sale  and  transfer  of  real  estate  situated  in  the  state  of  Florida. 
No  money  was  received  or  paid  by  either  at  the  time  the  notes  were 
executed.  All  further  acts  or  dealings  required  by  the  contracts  were 
to  be  performed  in  the  state  of  Massachusetts.  From  these  facts  the 
conclusion  must  follow  that  the  place  of  the  contract  is  the  state  of 
•  \  JU-t,A  \  Massachusetts,  and  its  laws  govern.  By  the  law  of  Massachusetts 
\j  ft""^^  '       I    all  executory  contracts   for  the  payment  of ^mone}7~tncTliding  bonds 

f.     ^,  ',  ,;«nd  promissory  notes,  made  and  delivered  on  Sunday,  are  void  as 

>V.'Ji]  I  between  the  parties.  Supp.  Pub.  St.  Mass.  1889-1895;  Cranson  v. 
\  tl  r  Goss,  107  Mass.  439,  9  Am.  Rep.  45,  and  cases  cited ;  Commonwealth 
V.  De  Voe,  159  Mass.  101,  34  N.  E.  85.  Defendant's  contention  con- 
cerning the  jurisdiction  of  the  court  under  the  legislation  embodied 
in  chapters  1  (page  1)  and  446  (page  738),  Laws  Wis.  1903,  need 
not  be  considered  for  the  reason  that,  if  this  legislation  be  invalid 
as  claimed,  the  case  must  be  held  as  pending  in  the  superior  court, 
and,  on  the  other  hand,  if  valid,  the  provisions  of  these  acts  cover 
this  case,  and  the  court  properly  proceeded  to  a  final  determination 
of  the  cause.  From  the  foregoing  it  follows  that  the  judgment  must 
be  reversed,  and  the  action  be  dismissed.  No  necessity,  therefore, 
arises  for  considering  any  of  the  other  questions  argued  on  the  ap- 
peal of  either  the  plaintiffs  or  defendant. 

Judgment  of  the  superior  court  is  reversed  on  defendant's  appeal, 
and  the  cause  is  remanded,  with  directions  to  enter  judgment  dis- 
missing the  complaint.     Plaintiff's  to  take  nothing  on  their  appeal. 


RICHARDSON  v.  ROWLAND. 

(Supreme  Court  of  Errors  of  Connecticut,  1S73.    40  Conn.  565.) 

Foster^  J.^^  The  only  point  presented  by  the  finding  for  our  con- 
sideration is,  whether  the  plaintiff'  is  entitled,  upon  the  facts  found, 
to  recover  one-half  of  the  sum  of  $468.53,  the  amount  received  by 
the  defendant  as  the  net  avails  of  his  suit  against  Sturges.  The  plain- 
tiff claims  one-half  of  this  sum  under  a  contract  with  the  defendant 
by  which  he  was  to  render  him  certain  services  in  connection  with 
the  suit,  and  receive  half  the  net  amount  recovered;    the  defendant 

22A  part  of  the  opinion  only  is  given. 


Ch.    2)  OBLIGATIONS.  279 

resists  the   demand,   claiming  that  the   contract  is   void   for  mainte- 
nance and  champerty.     '•'     '■^''     * 

The  contract  between  these  parties,  however,  was  in  regard  to  a 
suit  pending  in  the  state  of  New  York;  the  property  attached  was 
there  situate;  fKe"  services  to  be  performed  were  to  be  performed 
there ;  and  the  money  to  be  recovered,  if  recovered  at  all,  was  there 
to  be_r£jcoviered.  The  contract,  in  short,  was  to  be  performed  in  the 
state  of  New  York.  The  law  of  New  York,  therefore  must  neces- 
sarily govern  the  contract.  Commonwealth  of  Kentucky  v.  Bass- 
ford,  6  Hill  (N.  Y.)  526.  It  becomes  quite  unnecessary  to  decide 
what  the  law  of  Connecticut,  or  of  other  states,  may  be  on  the  sub- 
ject of  champerty  and  maintenance.-^     *     *     *  id  y' 

AKERS  V.  DEMOND. 

(Supreme  Judicial  Court  of  Massachusetts,  1869.    103  IMass.  318.) 

Wells,  J.^*    The  defence  to  this  suit  is,  that  the  bills  of  exchange 
are  void  forjisury,  under  the  laws  of  NewYork,  where  they  were        d(Sf^'i^'^^'  ,jj^* 
first  negotiated.     The  statute  of  New  YorkT^v.^  St.   (7th  Ed.)  pt.    '>**^  ^  f2AA/'*^ 

2,  c.  47tTtr3,  §  5,  declares  such  securities  void  "whereupon  or  where-  \^9^ 
by  there  shall  be  reserved  or  taken  or  secured,  or  agreed  to  be  re- 
served or  taken,"  a  greater  rate  of  interest  than  seven  per  cent.  The 
superior  court  ruled  that,  upon  the  testimony  offered,  no  defence 
was  established;  and  instructed  the  jury  to  return  a  verdict  for  the 
plaintiff's.  The  testimony  is  reported  for  our  consideration,  so  far 
as  admissible  and  competent,  subject  to  the  several  objections  made  ^^^^ 

thereto  by  the  plaintiffs.     *     *     *  jL-*'''*^ 

The  testimony  thus  held  to  be  admissible  and  competent  tends  to     {PcJ^^  -^-^- 

prove  that  the  bills  in  suit  were  drawn  by  Reed  and  indorsed  by  Wil-      '      6p.       ^^ 
liam  H.  Russell,  the  payee,  in  New  York,  and  accepted  bv  the  de-     ''^^'^ J>*^^JIl*i 
fendant~in  Boston,   being  upon   their   face   addressed   to   him   there  -' 

Both  the  acceptance  and  the  indorsement  were  for  the  accommoda- 
tion of  Reed.  The  possession  of  collateral  security,  whether  subse-  ^'^^ -t^  ^*^ 
quent  or  at  the  time,  does  not  change  the  character  of  the  accept-  "^ 
ance  or  the  relations  of  the  parties.  Dowe  v.  Schutt,  2  Denio  (N.  Y.) 
621.  After  the  return  of  the  acceptances  to_  Reed,  by  an  arrangement 
between  him  and  the  nominal  payee,  the  latter  procured  the  bills 
to  be  discounted  by  the  plaintiffs,  at  the  rate  of  one  and  a  half  per 
cent^  a  month.  The  proceeds  of  one  of  the  bills  were  retained  by 
William  H.  Russell,  the  payee,  as  a  loan  from  Reed,  and  the  proceeds 
of  the  other  handed  over  by  him  to  Reed. 

23Accorcl:     Grell   v.   Levy   [1SG4]    16   C.   B.    N.    S.   73    (semble).      Compare: 
Blackwell  v.  Webster  (C.  C.)  20  Fed.  614  (1SS6). 
2  4  The  statement  of  facts  and  a  part  of  the  opinion  have  been  omitted. 


M)- 


380  PARTICULAR  SUBJECTS.  (Part  2 

As  the  case  is  now  presented,  in  the  absence  of  controlling  testi- 
mony on  the  part  of  the  plaintiffs,  the  foregoing  statement  must  be 
taken  as  the  result  of  the  evidence.     It  shows  that  the  transaction 
by  which  the  plaintiff's  became  holders  of  the  bills  was  the  original 
negotiation  of  the  paper;   a  loan  upon  discount,  and_npt  a  mere  sgle 
of  the  bills.    Xhey  are  thefefKre  open  to  the^_def£ni;e^o£  usury.     This 
:; ,        is~  soclearly  showTi  tcTSe  tlTe~Taw  6T~Kew  York,  by  the  decisions  of 
Y.'     the  courts  of  that  state  referred  to  in  Ayer  v.  Tilden,  15  Gray,  178, 
Ji  JEr"'^      77  Am.  Dec.  355,  as  to  require  no  further  citations. 
^   "^  The  defendant  is  entitled  to  set  up  the  usury,  although  not  paid 

by  himself,  and  although  the  loan  was  not  made  to  him  nor  on  his 
account.  Van  Schaack  v.  Stafford,  12  Pick.  565 ;  Dunscomb  v.  Bun- 
ker, 2  Mete.  8 ;  Cook  v.  Litchfield,  5  N.  Y.  279 ;  Clark  v.  Sisson,  22 
N.  Y.  312. 

The  difficult  question  in  the  case  arises  from  the  fact  that  the  pa- 
per was  made  payable  in  Boston.  It  is  contended  that  the  contract 
.^  of  the  acceptor  is  to  be  governed  by  the  laws  of  the  place  where  the 
bills  are  made  payable.  The  general  principle  is,  that  the  law  of  the 
^  njJt-A~;  I  place  of  performance  is  the  law  of  the  contract.  This  rule  applies 
'^^^ ff^\  to  the  operation  and  effect  of  the  contract,  and  to  the  rights  and  obli- 
'''^.  '  gations  of  the  parties  under  it.  But  the  question  of  its  validity,  as 
affected  by  the  legality  of  the  consideration,  or  of  the  transaction 
upon  which  it  is  founded,  and  in  which  it  took  its  inception  as  a  con- 
tract, must  be  determined  by  the  law  n£_the_state  ^yhere_flia1^trfins- 
.action  w a s~""lTan[tr^1^o 'otHe r  law  can  apply  to  it.  Usury,  in  a  loan  ef- 
fected elsewhere,  is  no  offence  against  the  laws  of  Massachusetts. 
In  a  suit  upon  a  contract  founded  on  such  a  loan,  the  penalty  for 
usury  could  not  be  set  up  in  defence,  under  the  statutes  formerly  in 
force  in  this  Commonwealth.  Neither  can  a  penalty,  as  a  partial  de- 
fence, authorized  by  the  laws  of  one  state,  be  applied  or  made  ef- 
fective in  the  courts  of  another  state.  Gale  v.  Eastman,  7  Mete.  14. 
Such  penal  laws  can  be  administered  only  in  the  state  where  they  ex- 
ist. But  when  a  usurious  or  other  illegal  consideration  is  declared 
by  the  laws  of  any  state  to  be  incapable  of  sustaining  any  valid  con- 
tract, and  all  contracts  arising  therefrom  are  declared  void,  such  con- 
tractS'are'not  only  void  in  that  state,  but  void  in  every  state  .and  every- 
where. They__risver  acquire  a  legal  existence.  Contracts  founded 
on  usurious  transactions  in  the  state  of  New  York  are  of  this  char- 
acter. Van  Schaack  v.  Stafford,  12  Pick.  565 ;  Dunscomb  v.  Bunker, 
2  Mete,  8.  The  fact  that  the  bills  now  in  suit  were  accepted  in  Bos- 
ton and  were  payable"  there  does  not  exempt  them  from  this  opera- 
tion of  the  laws  of  New  York.  They  were  mere  "nude  pacts,"  with 
no  legal  validity  or  force  as  contracts,  until  a  consideration  was  paid. 
The  only  consideration  ever  paid  was  the  usurious  loan  made  by  these 
plaintiffs  in  New  York.  That  then  was  the  legal  inception  of  the  al- 
leged contracts.  Little  v.  Rogers,  1  Mete.  108 ;  Cook  v.  Litchfield. 
5  N.  Y,  279;   Clark  v,  Sisson,  22  N.  Y,  312;  Aeby  v.  Rapelyea,  1  Hill 


Ch.    2)  OBLIGATIONS.  381 

(N.  Y.)  371.     By  the  statutes  of  New  York,  that  transaction  was 
incapable  of  furnishing  a  legal  consideration ;    and,  so  far  as  the  bills  \^"'- 

depend  upon  that,  they  are  absolutely  void.     The^jDriginal  validity    ^yVL  y"*^"^  "'i 
of  such  a  contractjILUst-be  determined..by  the  law  of  the  state  In  which  [hyi^ [Ay^   CrJ^  "' 
it  is  first  negotiated  or  delivered  as  a  contract.     Hanrick  v.  Andrews,  A     j  J/<4u 

9  Port.  (AtaT7'9;    Andrews  v.  Pond,  13  Pet.  (U.  S.)  65,  10  L.  Ed.  tjjJwY^Xr  ^       / 
61;    Miller  v.  Tiffany,   1   Wall.    (U.   S.)  298,  17  L.  Ed.   540 ;    Lee     a      /      ^     ^  - 
v.  Selleck,  33  N.  Y.  615.  '^^ 

There  is  no  pretence  that  a  discount  of  one  and  a  half  per  cent, 
a  month  was  justifiable  by  reason  of  any  added  exchange  between 
New  York  and  Boston;  nor  that  it  was  otherwise  than  usurious,  if 
any  amount  of  charge  upon  paper  payable  elsewhere  than  in  New 
York  would  be  usurious  there.  It  has  often  been  held,  in  states  where  \ 
restrictions  upon  the  rate  of  interest  are  maintained,  that  it  is  not 
usury  to  charge  upon  negotiable  paper  whatever  is  the  lawful  rate 
of  interest  at  the  place  where  the  paper  is  payable,  although  great- 
er than  the  rate  allowable  where  the  negotiation  takes  place.  But  if 
the  paper  is  so  made  for  the  purpose  of  enabling  the  larger  rate  to 
be  taken,  or  the  greater  rate  is  received  with  intent  to  evade  the  stat- 
utes relating  to  usury,  and  not  in  good  faith  as  the  legitimate  pro- 
ceeds of  the  contract,  it  is  held  to  be  usury.  So  also,  if  a  greater  rate 
is  taken  than  is  allowed  by  the  law  of  either  state,  it  is  usury.  Such 
a  rate  necessarilv  implies  an  intent  to  disregard  the  statutes  restrict- 
ing interest.  Andrews  v.  Pond,  13  Pet.  (U.  S.)  65,  10  L.  Ed.  61; 
Miller  V.  Tiffany,  1  Wall.  (U.  S.)  298,  17  L.  Ed.  540.  The  legal 
rate  of  interest  or  discount  in  Massachusetts  is  six  per  cent,  per  an- 
num; and,  at  the  date  of  the  negotiation  of  these  bills,  a  greater  rate 
than  six  per  cent,  was  usurious  and  unlawful. 

It  follows  from  these  considerations,  that,  upon  the  evidence  as 
it  now  stands  upon  the  part  of  the  defendant,  the  transaction,  upon  . 
which  alone  the  bills  in  suit  must  depend  for  a  consideration  to  give 
them  validity  as  contracts,  was  illegal,  and  such  as,  under  the  laws  of 
New  York,  renders  them  utterly  void.  No  action,  therefore,  can  be 
maintained  upon  them  in  the  courts  of  Massachusetts,  unless  the  effect 
of  this  evidence  be  in  some  way  overcome  or  controlled.  The  verdict 
for  the  plaintiff  must  be  set  aside  and  a  new  trial  granted. 


382  PARTICULAR  SUBJECTS.  (Part  2 

ANDREWS  V.  POND. 

(Supreme  Court  of  the  United  States,  1S39.    13  Pet.  65,  10  L.  Ed.  61.) 

Taney,  C.  J.^^  This  case  comes  before  the  court  upon  a  writ  of 
error,  directed  to  the  judges  of  the  Circuit  Court  for  the  Ninth  Cir- 
cuit and  Southern  District  of  Alabama. 

The  action  was  brought  by  the  plaintiff,  as  indorsee,  against  the 
defendants,  as  indorsers  of  a  bill  of  exchange,  in  the  following  words : 

"Exchange  for  $7,287.78.  New  York,  March  11,  1837. 

"Sixty  days  after  date  of  this  first  of  exchange,  second  of  same 
tenor  and  date  unpaid,  pay  to  Messrs.  Pond,  Converse  &  Wadsworth, 
or  order,  seven  thousand  two  hundred  and  eighty-seven  ''^/loo  dol- 
lars, negotiable  and  payable  at  the  Bank  of  Mobile,  value  received, 
which  place  to  the  account  of 

"Your  obedient  servant,  D.  Carpenter. 

"To  Messrs.  Sayre,  Converse  &  Co.,  jMobile,  Alabama." 

The  case,  as  presented  by  the  record,  appears  to  be  this:  The  de- 
fendants were  merchants,  residing  in  Mobile,  in  the  state  of  Ala- 
bama. H.  M.  Andrews  &  Co.  were  merchants,  residing  in  New  York ; 
and,  before  the  above-mentioned  bill  was  drawn,  the  defendants  had 
become  liable  to  H.  M.  Andrews  &  Co.,  as  indorsers  upon  a  former 
bill  for  $6,000,  drawn  by  E.  Hendricks  on  Daniel  Carpenter,  of  Mont- 
gomery, Alabama.  The  last-mentioned  bill  was  dated  at  New  York, 
and  fell  due  on  the  21st  of  February,  1837,  and  was  protested  for 
nonpayment.  The  defendant.  Pond,  it  seems,  was  in  New  York,  in 
the  month  of  March,  1837,  shortly  after  this  protest,  when  H.  M. 
Andrews  &  Co.  fhreatened  to  sue  him  on  the  protested  bill;  and  the 
,  defendant.  Pond,  rather  than  be  sued  in  New  York,  agreed  to  pay 
H.  M.  Andrews  &  Co.  ten  per  cent,  damages  on  the  protested  bill, 
and  ten  per  cent,  interest  and  exchange  on  a  new  bill  to  be  given,  be- 
sides the  expenses  on  the  protested  bill. 

According  to  this  agreement  an  account,  which  is  given  in  the  rec- 
ord, was  stated  between  them  on  the  11th  of  March,  1837,  in  which 
the  defendants  were  charged  with  the  protested  bill,  and  ten  per  cent, 
damages  on  the  protest,  and  interest  and  expenses,  which  amounted 
altogether  to  the  sum  of  $6,625.25,  and  ten  per  cent,  upon  this  sum 
was  then  added,  as  the  difference  of  exchange  between  Mobile  and 
New  York,  which  made  the  sum  of  $7,287.78 ;  for  which  the  defend- 
ant. Pond,  delivered  to  H.  M.  Andrews  &  Co.  the  bill  of  exchange, 
upon  which  this  suit  is  brought,  indorsed  by  the  defendants  in  blank, 
The  bill  was  remitted  by  H.  M.  Andrews  &  Co.  to  S.  Andrews,  at 
Mobile,  for  collection.  The  drawees  refused  to  accept  it,  and  it  was 
protested  for  nonacceptance ;    and,  after  this  refusal  and  protest,  it 

28  The  statement  of  facts  and  a  part  of  the  opinion  liave  been  omitted. 


Ch.   2)  OBLIGATIONS.  383 

was  transferred  by  S.  xA.ndrews  to  J.  J.  Andrews,  the  present  plain- 
tiff. It  is  stated  in  the  exception  that,  after  this  transfer,  it  was  a 
cash  credit  in  the  account  between  H.  M.  Andrews  &  Co.  and  S.  An- 
drews. The  bill  Avas  not  paid  at  maturity,  and  this  suit  is  brought 
to  recover  the  amount. 

There  is  no  question  between  the  parties  as  to  the  principal  or  dam- 
ages of  ten  per  cent,  charged  for  the  protested  bill  of  $6,000 ;  nor 
as  to  the  interest  and  expenses  charged  in  the  account  hereinbefore 
mentioned.  The  defendants  admit  that  the  principal  amount  of  the 
protested  bill,  the  damages  on  the  protest  which  are  given  by  the  act 
of  assembly  of  New  York,  and  the  interest  and  expenses,  were  prop- 
erly charged  in  the  account.  The  sum  of  $6,625.25  was,  therefore, 
due  from  them  to  H.  M.  Andrews  &  Co.,  on  the  day  of  the  settle- 
ment, payable  in  New  York.  The  dispute  arises  on  the  item  of  $662.- 
53,  charged  in  the  account  as  the  difference  of  exchange  between 
New  York  and  Mobile,  and  which  swelled  the  amount  for  which  the 
bill  was  given,  to  $7,287.78.  The  defendants  allege  that  the  ten  per 
cent,  charged  as  exchange,  v^as  far  above^Hielharket  price  oT  exchange 
at  the  time" the  biinvas^giyen,  and  that  it  was  intended  as  a  cover  for 
usurious  interest'^exacted  by  the  said  H.  M.  Andrews  &  Co.,  as  the 
price  oFtheir  forbearance  for  the  sixty  days  given  to  the  defendants. 
This  was  their  defence  in  the  Circuit  Court,  where  a  verdict  was  found 
for  the  defendants,  under  the  directions  given  by  the  court.     *     *     * 

Another^guestion  presented  by  the  exception,  and  much  discussed 
here  is,  whether  tlie^^vaiTdTEy  of  this  contract  depends  upon  the  laws 
of  New  York  or  those  of  Alabama.  So  far  as  the  mere  question  of 
usury  is  concerned,  this  question  is  not  very  important.  There  is  no 
stipulation  for  interest  apparent  upon  the  paper.  The  ten  per  cent, 
in  controversy  is  charged  as  the  dift'erence  in  exchange  only,  and  not 
for  interest  and  exchange.  And  if  it  were  otherwise,  the  interest  al- 
lowed in  New  York  is  seven  per  cent.,  and  in  Alabama  eight;  and 
this  small  difference  of  one  per  cent,  per  annum,  upon  a  forbearance 
of  sixty  days,  could  not  materially  affect  the  rate  of  exchange,  and 
could  hardly  have  any  influence  on  the  inquiry  to  be  made  by  the  ju- 
ry. But  there  are  other  considerations  which  make  it  necessary  to 
decide  this  question.  The  laws  of  New  York  make  void  the  instru- 
ment when  tainted  with  usury;  and  if  this  bill  is  to  be  governed  by 
the  laws  of  New  York,  and  if  the  jury  should  find  tliat' it  was  given 
upon  an  usurious  coasideration,  the  plaintiff  would  not  be  entitled  to 
recover ;  unless  he  was  a  bona  fide  holder,  without  notice,  and  had 
given  for  it  a  valuable  consideration ;  while,  by  the  laws  of  Alabama, 
he  would  be  etititled_torecover  the  principal  amount  of  the  debt,  with- 
out any  Jnterest. 

Thegeneral  principle  in  relation  to  contracts  made  in  one  place  to 
be  executed  in  another,  is  well  settled.  They  are  to  be  governed  by 
the  law  of  the  place  of  performance;  and  if  the  interest  allowed  by 
the  laws  of  the  place  of  performance^  Is  Higher  than  that  permitted 


f 


'.  /'fLJli  ) 

384  PARTICULAR  SUBJECTS.  (Part  3 

at  the  place  of  the  contract,  the  parties  may  stipulate  for  the  higher 
interest,  without  incurring  the  penalties  of  usury.     And  in  the  case 
•L     -"*\        before  us,  if  the  defendants  had  given  their  note  to  H.  M.  Andrews 
hAA  &  Co.,  for  the  debt  then  due  to  them,  payable  at  Mobile,  in  sixty  days, 

with  eight  per  cent,  interest,  such  a  contract  would  undoubtedly  have 
been  valid;  and  would  have  been  no  violation  of  the  laws  of  New 
York,  although  the  lawful  interest  in  that  state  is  only  seven  per  cent^ 
And  if  in  the  account  adjusted  at  the  time  this  bill  of  exchange  was 
given,  it  had  appeared  that  Alabama  interest  of  eight  per  cent,  was 
taken  for  the  forbearance  of  sixty  days  given  by  the  contract;  and 
the  transaction  was  in  other  respects  free  from  usury;  such  a  res- 
ervation of  interest  would  have  been  valid  and  obligatory  upon  the 
defendants ;  and  would  have  been  no  violation  of  the  laws  of  New 
York. 

But  that  is  not  the  question  which  we  are  now  called  on  to  decide. 
The  defendants  allege  that  the  contract  was  not  made  with  refer- 
ence to  the  laws  of  either  state,  and  was  not  intended  to  conform  to 
either.  That  a  rate  of  interest  forbidden  by  the  laws  of  New  York, 
where  the  contract  was  made,  was  reserved  on  the  debt  actually  due; 
and  that  it  was  concealed  under  the  name  of  exchange,  in  order  to 
evade  the  law.  Now  if  this  defence  is  true,  and  shall  be  so  found 
by  the  jury,  the  question  is  not  which  law  is  to  govern  in  executing 
the  contract;   but  which  is  to  decide  the  fate  of  a  security  taken  up- 

1  on  an  usurious  agreement,  which  neither  will  execute?  Unquestion- 
ably, it  must  be  the  law  of  the  state  where  the  agreement  was~made. 
and  the  instrument  taken  to  secure  its  performance.     A  contract  of 

\  this  kind  cannot  stand  on  the  same  principles  with  a  bona  fide  agree- 
ment made  in  one  place  to  be  executed  in  another.     In  the  last-men- 
rji-  i  '  tioned  cases  the  agreements  were  permitted  by  the  lex  loci  contractus; 
A  ^  A  Hj .       and  will  even  be  enforced  there,  if  the  party  is  found  within  its  juris- 
,  ^  lA'       '   ^     diction.     But  the  same  rule  cannot  be  applied  to  contracts  forbidden 
by  its  laws  and  desig"ned  to  evade  them.    In  such  cases,  the  legal  con- 
^  _  ,v  .■  sequences  of  such  an  agreement  must  be  decided  by  the  law  of  the 

^jd^^    \\  ^  '  place  where  the  contract  was  made.     If  void  there,  it  is  void  every- 

where;   and  the  cases  referred  to  in  Story's  Conflict  of  Laws,  203, 
fully  establish  this  doctrine. 

In  the  case  of  De  Wolfe  v.  Johnson,  10  Wheat.  383,  6  L.  Ed.  343, 

'  this  court  held  that  the  lex  loci  contractus  must  govern  in  a  question 
of  usury;  although  by  the  terms  of  the  agreement  the  debt  was  to 
be  secured  by  a  mortgage  on  real  property  in  another  state.  And 
the  case  of  Dewar  v.  Span,  3  T.  R.  425,  shows  with  what  strictness 
the  English  (fourts  apply  their  own  laws  against  usury  to  contracts 
made  in  England.  In  the  case  under  consideration,  the  previous  debt 
for  which  the  bill  was  negotiated  was  due  in  New  York;  a  part  of  it, 
that  is  to  say,  the  damages  on  the  protest  of  the  first  bill,  were  given 
by  a  law  of  that  state ;  and  the  debt  was  then  bearing  the  New  York 
interest  of  seven  per  cent.,  as  appears  by  the  account  before  referred 


Ch.   2)  OBLIGATIONS.  385 

to.  And  if  in  consideration  of  further  indulgence  in  the  time  of  pay- 
ment, the  parties  stipulated  for  a  higher  interest,  and  agreed  to  con- 
ceal it  under  the  name  of  exchange,  the  validity  of  the  instrument, 
which  was  executed  to  carry  this  agreement  into  effect,  must  be  de- 
termined by  the  laws  of  New  York,  and  not  by  the  laws  of  Alabama. 
In  this  aspect  of  the  case,  another  question  arose  in  the  trial  in  the 
circuit  court.  By  the  laws  of  New  York,  as  they  then  stood,  usury 
was  no  defence  against  the  holder  of  a  note  or  bill  who  had  received 
it  in  good  faith,  and  to  whom  it  was  transferred  for  a  valuable  con- 
sideration, and  without  notice  of  the  usury.  The  present  plaintiff 
claims  the  benefit  of  this  provision.  But  upon  the  evidence  in  the 
case,  it  is  very  clear  that  he  does  not  bring  himself  within  it.  The 
bill  of  exchange  was  protested  for  nonacceptance,  while  it  was  in  the 
hands  of  S.  Andrews,  the  agent  of  H.  M.  Andrews  &  Co.,  to  whom 
it  had  been  sent  for  collection;  and  this  fact  appeared  on  the  face 
of  the  bill  at  the  time  it  was  transferred  to  the  plaintiff.  Now  a  per- 
son who  takes  a  bill,  which  upon  the  face  of  it  was  dishonored,  can- 
not be  allowed  to  claim,  the  privileges  which  belong  to  a  bona  fide 
holder  without  notice.  If  he  chooses  to  receive  it  under  such  cir- 
cumstances, he  takes  it  with  all  the  infirmities  belonging  to  it;  and 
is  in  no  better  condition  than  the  person  from  whom  he  received  it. 
There  can  be  no  distinction  in  principle  between  a  bill  transferred 
after  it  is  dishonored  for  nonacceptance,  and  one  transferred  after  it 
is  dishonored  for  nonpayment;  and  this  is  the  rule  in  the  English 
courts,  as  appears  by  the  case  of  Crossley  v.  Ham,  13  East,  498.  Now 
it  is  evident,  that  no  consideration  passed  between  Carpenter,  the 
drawer  of  the  bill,  and  the  defendants,  who  are  the  payers  and  in- 
dorsers.  The  bill  was  made  and  indorsed  by  the  defendants,  for  the 
purpose  of  being  delivered  to  H.  M.  Andrews  &  Co.,  in  execution  of 
the  agreement  for  further  indulgence.  And  if  that  agreement  was 
usurious,  then  the  bill  in  question  was  tainted  in  its  inception ;  and 
that  taint  must  continue  upon  it  in  the  hands  of  the  present  plain- 
tiff.    *     *     * 


^■:\,% 


MILLER  v.  TIFFANY. 

(Supreme  Court  of  the  United  States,  1SG3.     1  Wall.  208,  17  L.  Ed.  540.) 

SwAYNE,  J.^®  *  *  *  'j'j^g  defence  chiefly  relied  upon  is  usury. 
The  result  of  our  inquiry  upon  that  subject  must  depend  upon  the  lex 
loci  that  governs  the  contract. 

Palmer  and  Wallace,  the  payees  of  the  note,  were  the  assignees  of 
an  insolvent  firm,  which  did  business  under  one  name  in  New  York, 
and  under  another  at  Cleveland,  Ohio.  Palmer  resided  at  New  York 
and  Wallace  at  Cleveland.    About  $50,000  worth  of  the  goods,  covered 

2  6  The  statement  of  facts,  and  a  part  of  the  opinion  have  been  omitted. 
LoB.CoNF.L.— 25 


386  PARTICULAR  SUBJECTS.  (Part  2 

by  the  assignment,  were  at  the  former  city,  and  about  $75,000  worth 
at  the  latter.  The  negotiation  for  the  sale  was  commenced  by  Palmer 
and  concluded  by  Wallace.  The  note  is  as  follows:  [His  honor  here 
read  the  mortgage  note,  already  described.^'']  Miller  lived  in  Indiana. 
The  note  and  mortgage  were  executed  in  that  state.  The  mortgaged 
premises  are  situated  there.  Wallace  was  present  at  the  execution  of 
the  securities.  They  were  transmitted  to  Palmer  at  New  York.,  and 
the  goods  were  thereupon  shipped  thence  to  Indiana.  The  note  and 
mortgage  have  been  assigned  to  the  appellee. 

We  lay  out  of  view  the  imputation  upon  Palmer  and  Wallace,  of  a 
fraudulent  purpose  to  evade  by  shift  or  device  the  usury  statute  of 
Indiana  or  New  York.  It  is  wholly  unsupported  by  the  evidence. 
They  were  acting  in  a  fiduciary  character,  and  could  have  had  no  mo- 
tive to  engage  in  such  a  transaction.  There  is  no  reason  to  believe 
that  such  a  conception  entered  into  their  minds.  On  the  other  hand, 
we  are  by  no  means  satisfied  that  it  was  not  the  deliberate  purpose 'of 
Miller,  when  the  arrangement  was  made,  to  involve  them  in  the  toils 
of  this  defence,  and  if  possible  to  escape  with  the  goods  without  pay- 
ing anything  for  them.  Our  business,-  however,  is  to  ascertain  and 
apply  the  law  of  the  case.  We  shall  not  discuss  the  evidence  bearing 
upon  the  ethics  of  his  conduct. 

"The  general  principle  in  relation  to  contracts  made  in  one  place  to 
be  performed  in  another  is  well  settled.  They  are  to  be  governed  by 
the  law  of  the  place  of  performance,  and  if  the  interest  allowed  by 
the  law  of  the  place  of  performance  is  higher  than  that  permitted  at 
the  place  of  contract,  the  parties  may  stipulate  for  the  higher  interest 
without  incurring  the  penalties  of  usury."  Andrews  v.  Pond,  13  Pet. 
77,  78,  10  L.  Ed.  61 ;  Curtis  et  al.  v.  Leavitt,  15  N.  Y.  92 ;  Berrien  v. 
Wright,  26  ^arb.  (N.  Y.)  213.  The  converse  of  this  proposition  is 
also  well  settled.  If  the  rate  of  interest  be  higher  at  the  place  of  the 
contract  than  at  the  place  of  performance,  the  parties  may  lawfully 
contract  in  that  case  also  for  the  higher  rate.  Depeau  v.  Humphreys, 
8  Mart.  (N.  S.)  1;  Chapman  v.  Robertson,  6  Paige  (N.  Y.)  63i,  31 
Am.  Dec.  264. 

These  rules  are  subject  to  the  qualification,  that  the  parties  act  in 
good  faith,  and  that  the  form  of  the  transaction  is  not  adopted  to  dis- 
guise its  real  character.     The  validity  of  the  contract  is  determined 

2  7  The  note  was  in  these  words: 
"$20,000.  Cleveland,  O.,  February  22,  1850. 

"Five  years  after  date,  for  value  received,  I,  George  Miller,  of  Fort  Wayne, 
Allen  county,  Indiana,  promise  to  pay  Courtland  Palmer  and  Frederick  Wal- 
lace, assignees,  or  their  order,  twenty  thousand  dollars,  with  interest  at 
the  rate  of  ten  per  centum  per  annum,  payable  semi-annually,  after  six  months 
from  the  date  hereof,  and  on  failure  to  pay  said  interest  when  due,  the 
whole  of  said  note  to  become  due  and  collectible ;  the  above  note,  interest, 
and  principal,  negotiable  and  payable  at  the  Commercial  Branch  Bank,  Cleve- 
land, Ohio,  with  the  current  rate  of  exchange  on  New  Yorlc,  and  without  re- 
lief from  valuation  or  appraisement  laws  of  the  state  of  Indiana. 

"George  Miller." 


i 


Ch.   2)  OBJLIGATIONS.  387 

by  the  law  of  the  place  where  it  is  entered  into.  Whether  void  or  vaHd 
there,  it  is  so  everywhere,  Andrews  v.  Pond,  13  Pet.  78,  10  L.  Ed. 
61;  ]\Iix  V.  Madison  Ins.  Co.,  11  Ind.  117;  Corcoran  v.  Powers,  6 
Ohio  St.  19. 

When  these  securities  were  executed  the  statute  of  Ohio  of  the  14th 
of  March,  1850,  upon  the  subject  of  interest,  was  in  force.  According 
to  its  provisions  parties  might  lawfully  contract  for  any  rate  of  inter- 
est not  exceeding  ten  per  cent,  per  annum.  The  contract  of  ]\Iiller 
was  therefore  valid. 

Decree  affirmed  with  costs. 


ARNOLD  V.  POTTER. 

(Supreme  Court  of  Iowa,  1S67.    22  Iowa,  194.) 

Mortgage  foreclosure.  Plaintiff  is  a  resident  of  Massachusetts; 
defendant,  a  resident  of  Iowa.  The  real  estate  is  situated  in  Lee  coun- 
ty, Iowa.  The  mortgage  or  trust  deed  was  acknowledged  by  defend- 
ant in  Massachusetts  and  by  his  wife  in  Iowa.  Love,  the  trustee, 
resided  in  Iowa  and  there  accepted  the  trust.  The  notes  secured  by 
the  mortgage  were  dated  at  Keokuk,  in  the  state  of  Iowa,  payable  in 
New  York  to  the  order  of  one  Baldwin,  who  indorsed  them  to  plain- 
tiff, in  Iowa.  The  notes  and  the  deed  were  delivered  in  Massachusetts, 
and  the  money  was  received  there,  pursuant  to  the  agreement  entered 
into  when  negotiating  the  loan.    The  defense  was  usury.^^ 

Wright,  J.-**  *  *  *  'j^^g  general  rule  is  well  settled  that  the 
law  of  the  place  where  the  contract  is  made  is  to  govern  in  enforcing 
and  expounding  it,  unless  the  parties  provide  for  its  execution  else- 
where, in  which  case  it  is  to  be  governed  by  the  law  of  the  latter 
place. 

The  parties  may,  however,  if  it  is  m.ade  in  one  place  to  be  executed 
in  another,  stipulate  that  it  shall  be  governed  by  one  or  the  other. 

And  on  the  subject  of  interest  therefore,  if  the  law  of  the  one  place 
differs  from  that  of  the  other,  it  is  competent  for  them  to  agree  upon 
the  rate  in  either  locality,  and  thus,  by  their  contract,  determine  the 
law  which  shall  govern  this  incident  thereof.  Hence  it  has  been  held 
that  a  note  made  in  this  state  with  ten  per  cent,  payable  in  New  York, 
which  declares  void  all  contracts  reserving  more  than  seven  per  cent, 
would  be  maintained,  as  the  parties  thereby  expressly  stipulate  for  a 
rate  of  interest  allowed  by  the  place  of  making  the  contract.  Butters 
v.  Olds,  11  Iowa,  1 ;  and  see  Cox  v.  United  States,  6  Pet.  (U.  S.)  172, 
8  L.  Ed.  359;   Smith  v.  Smith,  2  Johns.  (N.  Y.)  236,  3  Am.  Dec.  410; 

2  8  This  statement  of  facts  has  been  substituted  for  that  of  the  orl/f-Hal 
report. 
2  "A  part  of  the  opinion  has  been  omitted. 


388  PARTICULAR  SUBJECTS.  (Part  2 

Thompson  v.  Ketcham,  4  Johns.  (N.  Y.)  285;  Gibbs  v.  Fremont,  20 
Eng.  L.  &  E.  555;  Stewart  v.  Ellice,  2  Paige  (N.  Y.)  604;  Berrien 
V.  Wright,  26  Barb.  (N.  Y.)  208;  Harvey  v.  Archibold,  1  Ry.  &  M. 
.  184;  Andrews  v.  Pond,  13  Pet.  (U.  S.)  65,  10  L.  Ed.  61_;  Depau  v. 
" "  ^''^^umphreys,  8  Mart.  (N.  S.)  1;  Van' IScH^rclTv.' "Edwards,  2  Johns. 
Cas.  (N.  Y.)  355;  De  Wolf  v.  Johnson,  10  Wheat.  (U.  S.)  367,  6 
h.  Ed.  343;  Chapman  v.  Robertson,  6  Paige  (N.  Y.)  627,  31  Am.  Dec. 
264 ;  Peck  v.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205 ;  Story's  Conflict 
of  Laws,  p.  296 ;  2  Kent.  (3d  Ed.)  460 ;  2  Parsons  on  Cont.  584,  and 
note  "h,"  where  the  authorities  are  very  fully  collected. 

Another  rule  may  be  stated  thus :  Where  the  interest  expressed  is 
usurious  both  by  the  law  of  the  place  of  making  the  contract  and  that 
where  it  is  payable,  the  law  of  the  former  place  will  govern  as  to  the 
7  consequence  of  the  usury.  Andrews  V;_Pond,  supra;  Mix  v.  Madi- 
son Ins.  Co.,  11  Ind.  117.  And,  therefore,  if  these  notes  were  made 
in  Massachusetts,  payable  in  New  York,  being  usurious  under  the 
laws  of  both  states,  the  law  of  the  first  would  govern. 

The  question,  of  more  importance,  however,  arises  upon  the  facts 
as  claimed  by  appellee.  The  indorsee,  and  it  may  be  admitted  the  real 
payee,  resided  in  Massachusetts.  The  loan  was  negotiated  there  by 
the  payor,  a  resident  of  this  state.  The  notes  were  signed  in  Massa- 
chusetts, dated  and  indorsed  here,  and  delivered  there  by  the  maker. 
The  security  was  upon  lands  in  this  state,  and  though  acknowledged  by 
the  defendant  (the  husband)  there,  it  was  executed  by  the  wife  here. 
The  interest  reserved  is  legal  under  our  statute. 

Plaintiff  claims  that  the  parties  in  good  faith  contracted  with  ref- 
erence to  the  laws  of  this  state,  intending  to  make  this  an  Iowa  con- 
tract. And  upon  this  subject  the  court  instructed  as  follows:  "If 
defendant  went  to  Boston  and  urged  the  loan  and  promised  ten  per 
cent,  under  the  laws  of  Iowa,  and  all  the  arrangements  and  contracts 
were  made  as  to  the  laws  of  Iowa  in  good  faith,  and  no  more  than 
ten  per  cent,  was  contracted  for,  then  the  defense  fails  and  plaintiff  can 
recover;"  and  also,  "if  the  parties  in  good  faith  loaned  and  borrowed 
the  money  sued  for,  with  a  full  understanding  that  the  law  of  Iowa 
was  to  govern  as  to  the  interest,  then  the  laws  of  New  York  and 
Massachusetts  can  have  no  influence  here,  but  the  understanding  of  the 
parties  must  prevail." 

These  instructions  were  based,  of  course,  upon  the  facts  claimed,  as 
above  set  forth ;    and  now  the  question  is,  do  they  contain  the  law  ? 

Our  opinion  is  that,  if  the  parties  acted  in  good  faith,  that  is,  if  there 
was  no  intention  to  evade  the  law,  it  was  competent  for  them  to  thus 
contract,  and  that  the  defense  could  not  avail.  In  thus  holding,  we, 
of  course,  do  not  decide  that  two  citizens  of  Massachusetts  could 
make  a  contract  in  that  state,  payable  there  or  in  New  York,  agree 
to  be  governed  by  the  laws  of  Iowa  or  California,  and  thereby  avoid 
the  consequences  of  the  usury.    Nor  do  we  hold  that  a  citizen  of  one 


Ch.    2)  .OBLIGATIONS,  389 

state  could  make  his  note  in  another  to  a  resident  there,  payable  in  a 
third,  with  interest  as  allowed  in  a  fourth.  But  what  we  do  hold  is 
that,  if  A.,  of  Iowa,  in  good  faith,  borrows  money  of  B.,  in  Illinois, 
gives  security  on  land  in  Iowa,  and  they,  in  good  faith,  agree  that 
the  law  of  Iowa  shall  govern;  that  a  note  given  in  pursuance  of  said 
contract  in  Illinois,  bearing  the  interest  allowed  by  our  laws,  would 
not  be  usurious. 

While  parties  will  not  be  allowed  to  evade  the  law,  the  question 
after  all  is,  was  the  course  adopted  as  a  cover  for  usury? 

The  intention  of  the  parties  is  always  an  important  element,  and 
should  never  be  disregarded.  To  what  place  did  the  parties  in  good 
faith  have  reference,  in  negotiating  the  loan,  may  always  be  shown. 
We  concede  the  proposition  that,  if  the  contract  is  made  between  the 
citizen  of  one  state  and  the  citizen  of  another,  in  the  former,  without 
any  agreement  or  understanding,  it  is  to  be  governed  by  the  law  of  the 
place  where  made,  or  where  it  is  to  be  executed,  if  still  in  another 
state.  Story's  Conflict  of  Laws,  §  299;  Smith  v.  Mead,  3  Conn.  253, 
8  Am.  Dec.  183;  Jacks  v.  Nichols,  5  Barb.  (N.  Y.)  38. 

But,  in  this  concession,  there  is  no  abandonment  of  the  position 
that  the  parties  may,  in  good  faith,  contract  with  reference  to  the  law 
of  the  place  where  the  payor  resides,  and  where  the  property  upon 
which  the  security  is  taken  is  located.  For  there  being,  in  the  latter 
case,  no  attempt  to  evade  the  law,  courts  will  not  apply  its  penalties. 
The  form  of  the  transaction  is  nothing,  the  cardinal  inquiry  being, 
when  the  contract  specifying  the  amount  reserved  is  express,  did 
the  parties  resort  to  it  as  the  means  of  disguising  the  usury  in  viola- 
tion of  the  laws  of  the  state,  where  the  contract  was  made  or  to  be  exe- 
cuted. And,  in  arriving  at  this  intention,  all  of  the  fac):s  are  to  be 
taken  into  consideration.  Thus,  in  this  case,  the  fact  that  the  notes 
were  dated  in  Iowa,  made  payable  to  the  party  here,  and  by  him  indors- 
ed in  this  state ;  that  the  trustee  resided  here  and  in  no  other  place 
could  the  security  be  made  available ;  that  the  payor  resided  here ; 
that  he  went  to  Massachusetts  to  negotiate  the  loan;  and  if,  under 
these  circumstances,  the  parties,  in  good  faith,  stipulated  for  the  in- 
terest allowed  here,  the  contract  should  be  enforced.  To  hold  other- 
wise would  enforce  forfeitures  without  reason,  and  extend  unwar- 
rantably the  operation  of  penal  statutes.  Not  only  so,  but  it  would 
be  setting  at  naught  the  solemn  agreements  of  parties,  entered  into 
with  the  best  of  motives,  and  when  they  have  had  no  purpose  of  violat- 
ing the  laws  of  any  state.  Then,  again,  it  would  compel  our  courts  to 
enforce  the  laws  of  other  states,  and  hold  parties  to  their  penalties, 
and  consequences,  when  they  have,  in  express  terms,  agreed  to  be  gov- 
erned by  ours.  Upon  this  subject,  generally,  see  the  following  au- 
thorities: Thompson  v.  Paroles,  2  Sim.  194;  Hosford  v,  Nichols,  1 
Paige  (N.  Y.)  220;  Chapman  v.  Robertson,  6  Paige  (N.  Y.)  627,  31 
Am.  Dec.  264;    Berrien  v.  Wright,  26  Barb.   (N.  Y.)   208;    Story's 


390 


PARTICULAR  SUBJECTS. 


(Part  2 


Conflict  of  Laws  §§  293-296,  and  note  1;  3  Parsons  on  Cont.  114; 
Richards  v.  Globe  Bank,  12  Wis.  692;  Vliet  v.  Camp,  13  Wis. 
198.     * 


H:   30 


^ 


SHANNON  V.  GEORGIA  STATE  BUILDING  &  LOAN  ASS'N. 


•k      '^    u    (Supreme  Court  of  Mississippi,  1901.     78  Miss.  955,  30  South.  51,  57  L.  R.  A. 
^r      7     \y^  800,  84  Am.  St.  Rep.  657.) 

y'  ^  In  September,  1895,  Mrs.  N.  L.  Shannon,  the  mother  of  appellant, 
borrowed  from  the  Georgia  State  Building  &  Loan  Association,  of  Sa- 
vannah, Ga.,  the  sum  of  $1,000,  and  to  secure  said  loan  she  and  her  hus- 
band executed  a  deed  of  trust  on  certain  property  owned  by  her  in  the 
town  of  Ellisville,  Miss.,  and,  in  further  consideration  of  said  loan, 
subscribed  for  10  shares  of  stock  in  said  association,  at  $100  per  share, 
and  received  a  certificate  for  said  shares,  which  she  indorsed  in  blank 
and  delivered  to  the  association  as  additional  security  for  said  loan. 
By  the  terms  of  the  deed  of  trust,  Mrs.  Shannon  was  to  pay  $10  per 
month,  or  $120  per  year,  to  the  association  as  interest  and  fixed  pre- 
mium on  said  loan  of  $1,000,  and  monthly  dues  of  60  cents  per  share 
on  said  10  shares  of  stock.  From  the  date  of  said  loan  in  October, 
1895,  until  November,  1896,  Mrs,  Shannon  promptly  made  the  monthly 
payments  to  one  Jesse  M.  Bush,  the  local  secretary  of  the  association 
at  Ellisville,  Miss.  From  October,  1896,  to  March  10, 1897,  Charles  R. 
Shannon  advanced  the  payments  for  his  mother.  On  the  last-named  date 
Charles  R.  Shannon  purchased  from  his  mother  the  property  on  which 
the  association  held  the  deed  of  trust.  Charles  R.  Shannon  continued  to 
make  his  monthly  payments  to  the  local  agent  of  the  company  at 
Ellisville,  Miss.,  until  March,  1899,  at  which  time,  by  paying  at  differ- 
ent times  certain  amounts  on  the  principal,  he  had  paid  off  the  indebt- 
edness. After  Charles  R.  Shannon  had  paid  off  the  indebtedness  to  the 
association  he  instituted  an  attachment  suit  against  said  association, 

3  0 As  to  renewal  notes,  see  Bowman  v.  Miller,  25  Grat.  (Va.)  331,  18 
.\m.  Rep.  G80  (1874);  AVayne  County  Sav.  Banlc  v.  Low,  81  N.  Y.  566,  37 
Am.  Rep.  533  (1S80) ;  Staples  v.  Nott,  128  N.  Y.  403,  28  N.  E.  515,  26  Am. 
St.  Rep.  480  (1891) ;    Mott  v.  Rowland,  85  Mich.  561,  48  N.  W.  638  (1891). 

The  mere  fact  that  the  note  is  secured  by  a  mortgage  upon  real  estate 
does  not  make  the  lex  rel  sitse  applicable  to  the  question  of  usury.  De 
Wolf  V.  Johnson,  10  Wheat.  (U.  S.)  367,  6  L.  Ed.  343  (1825) :  Manhattan  Life 
Ins.  Co.  V.  Johnson,  188  N.  Y.  108,  80  N.  E.  658,  9  L.  R.  A.  (N.  S.)  1142  (1907). 

Positive  statutory  provisious  may,  of  course,  modify  the  application  of 
the  ordinary  rules  with  respect  to  usury.  Fowler  v.  Equitable  Trust  Co., 
141  U.  S.  384,  12  Sup.  Ct.  1,  35  L.  Ed,  786  (1891). 

As  to  defense  of  usury  by  the  drawer  or  the  indorser  of  a  bill  or  note, 
see  post,  p,  437. 

As  to  defense  of  usury  by  surety,  see  post,  p.  416. 

English  Gaming  Act  1835  (5  &  6  Win.  IV,  c.  41)  §  4,  has  been  held  applicable 
to  a  transaction  in  a  foreign  country.  Moulis  v.  Owen,  [1907]  1  K.  B.  (C.  A.) 
746.  In  this  case  a  check,  drawn  upon  England  in  the  French  colony  of  Al- 
giers, where  it  was  given  for  a  gambling  debt,  was  held  invalid,  though  the 
consideration  for  it  would  be  legal  under  French  law. 


Ch.    2)  OBLIGATIONS.  391 

and  had  writs  of  garnishment  issued  against  certain  parties  in  this 
state  who  are  indebted  to  said  association,  to  recover  of  it  an  alleged 
indebtedness  of  $351  due  him  as  usurious  interest  paid  by  him  to  said 
association.  On  the  trial  of  the.  cause  in  the  court  below  a  jury  was 
waived,  and  by  consent  the  case  was  submitted  to  the  court,  who  ren- 
dered judgment  in  favor  of  defendant.  From  this  judgment  the 
plaintiff  appeals.* 

Whitfield,  C.  J.^^  It  is  thoroughly  settled  in  this  state,  under 
facts  like  those  in  this  record,  that  the  appellant  can  recover  the  whole 
of  the  interest.  McAlister  v.  Jerman,  32  Miss.  142 ;  Chaft'e  v.  Wil- 
son, 59  Miss.  42.  The  appellant  stood  as  a  substituted  debtor,  and  had 
all  the  rights  the  original  debtor  had.  The  premium  in  this  case  was 
fixed,  and  the  contract  was  therefore  usurious.  See  the  case  of  So- 
koloski,  V.  New  South  Building  &  Loan  Ass'n,  77  Miss.  155-166,  26 
South.  361. 

The  chief  point  of  contention  is  whether  this  is  a  Georgia  qr_a_2Ii^^ 
sissippi_coritracf  It  is  true,  the  notes  were  payable  in  Georgia ;  but 
the  mortgage  was  on  land  in  Mississippi,  and  the  debtor  lived  in  Mis- 
sissippi, where  alone  the  mortgage  could  have  been  enforced.  All 
the  payments  through  a  series  of  years  were  actually  made  in  Missis- 
sippi, instead  of  Georgia,  to  the  local  treasurer  here,  and  it  is  manifest 
it  was  intended  they  should  be  made  here.  This  foreign  corporation 
had  the  power  to  organize  local  boards  throughout  Georgia  and  other 
states.  It  did  organize  a  local  board,  thoroughly  officered,  at  Ellis- 
ville,  in  this  state;  and  to  the  local  secretary  and  treasurer  of  this 
board  all  payments  were  made  by  'the  appellant  and  his  vendor,  and  by 
other  members  of  this  association,  through  a  series  of  years.  It  is 
obvious  that  this  foreign  corporation  has  thus  localized  its  Mississippi 
business  within  the  state  of  Mississippi.  It  is  not  a  case  of  a  nonresi- 
dent money  lender  or  a  foreign  corporation  in  a  few  isolated  cases 
dealing  with  our  citizens,  and  taking  notes  payable  in  the  state  of  the 
domicile  of  such  person  or  corporation.  It  is  the  case  of  a  localiza- 
tion within  this  state  of  a  large  business  done  by  a  foreign  corpora- 
tion on  the  faith  of  mortgages  on  land  in  this  state,  the  payments  to  be 
made  to  the  secretary  and  treasurer  of  their  respective  local  boards, 
scattered  throughout  the  state.  Wherever,  under  circumstances  such 
as  these,  the  foreign  corporation  'thus  localizing  its  business  within  this 
state  has  ^le  payments  made  to  the  secretary  or  treasurer  6f~a~tocai~ 
^oard,  the  real  intention  of  the  parties  is  that  the  payments  shall  be* 
made  in  this  state,  and  the  only  purpose  of  recitTng  the  contrary  in  tfie 
Hotes  is  to  evade  the  usury  laws  ot  this  state.  The  contract  is  a  Mislis- 
'sippi  contract,  according  to  the  real  facts  and  the  real  intention  of  the 
parties.  Courts  look  through  all  disguises  to  the  real  case  made  by  the 
actual  facts.     *     *     * 

♦This  statement  has  been  taken  from  30  South.  51. 
31A  part  of  the  opinion  has  been  omitted. 


i 


392  PARTICULAR  SUBJECTS.  (Part  2 

Our  decision  is  rested  upon  the  two  distinct  grounds :  First,  that 
where  a  foreign  money-lending  corporation  has  localized  its  business 
within  this  state  through  local  boards,  doing  here  regularly  and  con- 
tinuously for  years  the  business  of  the  corporation,  it  has  thus  volun- 
tarily domesticated  itself  within  this  state,  and  subjected  its  business 
and  contracts  to  the  operation  of  our  laws ;  and,  second,  that  where, 
in  such  case,  all  the  facts,  fairly  weighed,  show  that  the  only  purpose 
of  a  mere  stipulation  in  the  notes  or  mortgages  for  payment  in  the 
foreign  state  must  have  been  to  evade  our  laws  on  the  subject  of  usury, 
no  device  or  disguise  or  contrivance  will  prevent  the  courts  from  strip^ 
ping  off  the  mask,  and  pronouncing  the  judgment  of  the  law  on  the  real 
case  made  by  the  actual  facts.     *     *     * 

The  judgment  is  reversed,  and  cause  remanded.'* 


EQUITABLE  LIFE  ASSUR.  SOC.  v.  CLEMENTS. 

(Supreme  Court  of  the  United  States,  1891.    140  U.  S.  226,  11  Sup.  Ct.  822,  35 

L.  Ed.  497.) 

Gray,  J.^'  Upon  the  question  whether  the  contract  sued  on  was 
made  in  New  York  or  in  Missouri,  there  is  nothing  in  the  record,  ex- 
cept the  policy  and  application,  the  petition  and  answer,  by  which  the 
facts  appear  to  have  been  as  follows:  The  assured  was  a  resident  of 
Missouri,  and  the  application  for  the  policy  was  signed  in  Missouri. 
The  policy,  executed  at  the  defendant's  office  in  New  York,  provides 
that  "the  contract  between  the  parties  hereto  is  completely  set  forth 
in  this  policy  and  the  applicatioij  therefor,  taken  together."  The  ap- 
plication declares  that  the  contract  "shall  not  take  effect  until  the  first 
premium  shall  have  been  actually  paid  during  the  life  of  the  person 
herein  proposed  for  assurance."  The  petition  alleges  that  that  pre- 
mium and  two  annual  premiums  were  paid  in  Missouri.  The  answer 
expressly  admits  the  payment  of  the  three  premiums,  and,  by  not  con- 
troverting that  they  were  paid  in  Missouri,  admits  that  fact  also, 
if  material.  Rev.  St.  Mo.  1879,  §  3545.  The  petition  further  alleges 
that  the  policy  was  delivered  in  Missouri;  and  the  answer  admits  that 
the  policy  was,  "at  the  request  of  the  said  Wall,  transmitted  to  the 
state  of  Missouri,  and  was  delivered  to  said  Wall  in  said  state."  If 
this  form  of  admission  does  not  imply  that  the  policy  was  at  the  request 
of  Wall  transmitted  to  another  person,  perhaps  the  company's  agent, 

32As  to  usury  in  general,  see  62  L.  R.  A.  42--81 ;  also  Cyc.  "Usury — What 
Law  Governs." 

CoNTiNENTAi,  Law. — The  ordinary  rules  have  been  held  to  apply  also 
to  the  question  of  usury.  In  favor  of  the  law  of  the  place  of  making,  see 
France,  Cass.  Feb.  19,  1890  (17  Clunet,  495);  App.  Bordeaux,  Aug.  22,  1865 
(S.  1866,  2,  217).  In  favor  of  the  law  of  the  place  of  performance,  see  Ger- 
many, 46  R.  G.  112  (May  26,  1900). 

3  3  The  statement  of  facts  has  been  omitted. 


Ch.    2)  OBLIGATIONS.  393 

in  Missouri,  and  by  him  there  deHvered  to  Wall,  it  is  quite  consistent 
with  such  a  state  of  facts;  and  there  is  no  evidence  whatever,  or  even 
averment,  that  the  policy  was  transmitted  by  mail  directly  to  Wall,  or 
that  the  company  signified  to  Wall  its  acceptance  of  his  application  in 
any  other  way  than  by  the  delivery  of  the  policy  to  him  in  Missouri. 
Upon  this  record,  the  conclusion  is  inevitable  that  the  policy  never 
became  a  completed  contract,  binding  either  party  to  it,  until  the  de- 
livery of  the  policy  and  the  payment  of  the  first  premium  in  Missouri; 
and,  consequently,  that  the_£olicy  is  a  Missouri  contract,. and  governed 
by  jhe  laws  of  Missouri.. 

By  the  Revised  Statutes  of  Missouri  of  1879,  in  force  when  this 
policy  was  made,  it  was  enacted  as  follows :  By  section  5983,  "no 
policy  of  insurance  on  life,  hereafter  issued  by  any  life  insurance  com- 
pany authorized  to  do  business  in  this  state,  shall,  after  payment  upon 
it  of  two  full  annual  premiums,  be  forfeited  or  become  void  by  reason 
of  the  nonpayment  of  premium  thereon;  but  it  shall  be  subject  to  the 
following  rules  of  commutation,  to  wit."  The  net  value  of  the  policy 
is  to  be  computed,  and  the  insurance  is  to  continue  in  force  for  the  full 
amount  of  the  policy  for  such  time  as  three-fourths  of  such  net  value 
will  be  a  premium  for,  according  to  the  rules  of  commutation  pre- 
scribed in  that  section.  By  section  5984,  the  holder  of  the  policy, 
withm  60  days  from  the  beginning  of  such  temporary  insurance,  may 
elect  to  take  a  paid-up  policy  for  such  amount  as  the  net  value  afore- 
said would  be  a  premium  for.  By  section  5985,  if  the  assured  dies 
within  the  term  of  temporary  insurance,  as  determined  by  section 
5983,  and  there  has  been  no  breach  of  any  other  condition  of  the 
policy,  "the  company  shall  be  bound  to  pay  the  amount  of  the  policy, 
the  same  as  if  there  had  been  no  default  in  the  payment  of  premium, 
anything  in  the  policy  to  the  contrary  notwithstanding."  The  mani- 
fest object  of  this  statute,  as  of  many  statutes  regulating  the  form 
of  policies  of  insurance  on  lives  or  against  fires,  is  to  prevent  insur- 
ance companies  from  inserting  in  their  policies  conditions  of  forfei- 
ture or  restriction,  except  so  far  as  the  statute  permits.  The  statute 
is  not  directory  only,  or  subject  to  be  set  aside  by  the  company  with 
the  consent  of  the  assured ;  but  it  is  mandatory,  and  controls  the  na- 
ture and  terms  of  the  contract  into  which  the  company  may  induce  the 
assured  to  enter.  This  clearly  appears  from  the  unequivocal  words  of 
command  and  of  prohibition  above  quoted,  by  which,  in  section  5983, 
"no  policy  of  insurance"  issued  by  any  life  insurance  company  author- 
ized to  do  business  in  this  state  "shall,  after  the  payment  of  two  full 
annual  premiums,  be  forfeited  or  become  void,  by  reason  of  the  non- 
payment of  premium  thereon,  but  it  shall  be  subject  to  the  following 
rules  of  commutation ;"  and,  in  section  5985,  that  if  the  assured  dies 
within  the  term  of  temporary  insurance,  as  determined  in  the  former 
section,  "the  company  shall  be  bound  to  pay  the  amount  of  the  policy," 
"anything  in  the  policy  to  the  contrary  notwithstanding."  This  con- 
struction is  put  beyond  doubt  by  section  5986,  which,  by  specifying 


394  PARTICULAR  SUBJECTS.  (Part  2 

four  cases  (two  of  which  relate  to  the  form  of  the  policy)  in  which 
the  three  preceding  sections  "shall  not  be  applicable,"  necessarily  im- 
plies that  those  sections  shall  control  all  cases  not  so  specified,  what- 
ever be  the  form  of  the  policy.  Of  the  cases  so  specified,  the  only  ones 
in  which  the  terms  of  the  policy  are  permitted  to  differ  from  the  plan 
of  the  statute  are  the  first  and  second,  which. allow  the  policy  to  stipu- 
late for  the  holder's  receiving  the  full  benefit,  either  in  cash,  or  by  a 
new  paid-up  policy,  of  the  three-fourths  of  the  net  value,  as  deter- 
mined by  sections  5983  and  5984.  The  other  two  cases  specified  do 
not  contemplate  or  authorize  any  provision  in  the  contract  itself  in- 
consistent with  the  statute;  but  only  permit  the  holder  to  surrender 
the  policy,  either  in  lieu  of  a  new  policy,  or  for  a  consideration  ade- 
quate in  his  judgment.  In  defining  each  of  these  two  cases,  the  stat- 
ute, while  allowing  the  holder'  to  make  a  new  bargain  with  the  com- 
pany, at  the  time  of  surrendering  the  policy,  and  upon  such  terms  as, 
on  the  facts  then  appearing,  are  satisfactory  to  him,  yet  significantly, 
and,  it  must  be  presumed,  designedly,  contains  nothing  having  the 
least  tendency  to  show  an  intention  on  the  part  of  the  Legislature  that 
the  company  might  require  the  assured  to  agree  in  advance  that  he 
would  at  any  future  time  surrender  the  policy,  or  lose  the  benefit 
thereof,  upon  any  terms  but  those  prescribed  in  the  statute.  It  fol- 
lows that  the  insertion  in  the  policy  of  a  provision  for  a  different 
rule  of  commutation  from  that  prescribed  by  the  statute  in  case  of 
default  of  payment  of  premium  after  three  premiums  have  been  paid, 
as  well  as  the  insertion  in  the  application  of  a  clause  by  which  the 
beneficiary  purports  to  "waive  and  relinquish  all  right  or  claim  to 
any  other  surrender  value  than  that  so  provided,  whether  required  by 
a  statute  of  any  state  or  not,"  is  an  ineffectual  attempt  to  evade  and 
nullify  the  clear  words  of  the  statute. 
Judgment  affirmed.^* 

3  4  See,  also,  Mutual  Life  Ins.  Co.  v.  Cohen,  179  U.  S.  262,  21  Sup.  Ct. 
106,  45  L.  Ed.  181  (1900);  Mutual  Life  Ins.  Co.  v.  Hill,  193  U.  S.  551,  24 
Sup.  Ct.  538,  48  L.  Ed.  788  (1904). 

As  to  insurance  contracts  in  general,  see  63  L.  R.  A.  833-869,  and  104 
Am.  St.  Rep.  483^92 ;  and  as  to  their  interpretation  in  particular,  The 
London  Assurance  v.  Companhia  De  Moagens  Do  Barreiro,  167  U.  S.  149, 
17  Sup.  Ct.  785,  42  L.  Bd.  113  (1897);  Knights  Templars'  &  Masonic  Mut. 
Aid  Ass'n  v.  Green  (C.  C.)  79  Fed.  461  (1897);  Mullen  v.  Reed,  64  Conn. 
240,  29  Atl.  478,  24  L.  R,  A,  664,  42  Am.  St.  Rep.  174  (1894) ;  Burns  v.  Burns, 
82  N.  E.  1107  (1907). 

Agreements  Relating  to  Jurisdiction  of  Courts  or  to  Arbitration. — 
a.  England  and  the  United  States. — Stipulations  that  future  controversies 
shall  be  submitted  to  arbitration  or  shall  be  litigated  in  a  certain  court 
are  deemed  illegal  and  void  in  this  country,  and  will  not  be  enforced,  even 
though  they  be  valid  under  the  law  of  the  place  where  such  stipulation  was 
made.  See  8  Col,  Law  Rev,  409,  See,  also,  Addison  C,  Burnham,  Arbitra- 
tion as  a  Condition  Precedent,  11  Harv,  Law  Rev.  234-248;  G.  B,  Slay- 
maker,  The  Legality  of  Contracts  Affecting  the  Jurisdiction  of  Courts, 
.58  Central  Law  Journal,  64-66.  Agreements  with  reference  to  arbitration 
have  become  practically  enforceable  in  England  since  the  arbitration  act 
of  1889.     See  Wald's  Pollock  (Williston's  Ed.)  on  Contracts,  445^49. 

b.  Continental     Countries. — 1,  Stipulations     Relating     to     Jurisdiction     of 


Ch.  2) 


OBLIGATIONS. 


395 


a^.ysAA''^^ 


SORTWELL  V.  HUGHES. 


JLs^. 


(Circuit  Court,  District  of  New  Hampsliire,  1852. 

13,177.) 


1  Curt.  244,  Fed.  Cas. 


This  is  an  action  for  goods  sold  and  delivered   [by  Daniel  R.  Sort-  ^^ 

well  and  others  against  Peter  Hughes] .    An  auditor,  appointed  by  con- 
sent of  parties,  having  made  a  report,  it  was  agreed  that  his  report  ^^^j/UK-rS^tu.'*- 
should  be  taken  to  be  a  statement  of  facts.    The  material  facts  found  ^^   ^j^  hiJi/*^ 

by  him  were,  that  the  defendant  was  engaged,  at  Dover,  N.  H.,  in  the      y^^-^^^ 
sale  of  spirituous  liquors  without  a  license ;    that  one  of  the  plaintiffs,        .jy^  ^  <^■e>*^*^ 
being  from  time  to  time  at  the  defendant's  place  of  business  in  Dover,  re-      '  >p  , 

ceived  verbal  orders  from  him  for  these  liquors,  promised  to  send  them  'V*'*'**  ' 
to  him,  and  on  his  return  to  Boston,  did  deliver  tljem,  either  at  the  Boston 
&  Maine  Railroad,  or  on  board  some  vessel,  consigned  to  the  defend- 
ant, at  Dover,  who,  upon  their  reception,  paid  the  freight.  One  par- 
cel was  ordered  by  the  defendant,  personally,  in  Boston,  and  sent  in 
the  same  manner  as  the  others. 

Curtis,  Circuit  Justice.^^  The  statute  law  of  New  Hampshire,  in 
force  when  these  transactions  took  place,  inflicted  a  penalty  upon  any 
person,  not  licensed,  who  should  sell  any  spirituous  liquor  or  wine. 


</sr-t-» 


iA^*» 


'Vv-^ 


Courts. — Such  stipulations  are  allowed  in  France,  and  will  be  enforced, 
althoush  the  jurisdiction  of  French  courts  is  thereby  ousted.  Cass.  Aug. 
13,  1879  (D.  1880.  1,  85) ;  Cass.  Feb.  29,  1888  (D.  1888,  1,  483).  Contra:  Italy, 
App.  Bologna,  Nov.  10,  1905  (35  Clunet,  249).  According  to  German  law 
parties  may  agree  that  a  court  having  jurisdiction  according  to  German 
law  shall  have  exclusive  jurisdiction  over  any  controversy  that  may  arise 
from  a  given  contract.    R.  G.  Feb.  18,  1895  (6  Niemeyer,  173). 

2.  Stipulations  Relating  to  ArMtratlon. — France. — According  to  French  mu- 
nicipal law  such  a  stipulation  is  valid  only  if  the  arbitrators  and  the  sub- 
ject-matter are  named  in  the  arbitration  agreement.  Article  1006,  Code  Civ. 
Proc.  But  an  agreement  for  arbitration,  entered  into  abi'oad  and  valid  where 
made,  will  be  enforced  in  France,  though  it  does  not  conform  to  the  requisites 
of  French  law  Cass.  June  21,  1904  (S.  1906,  1,  22) :  Cass.  July  26,  1893  (D. 
1894,  1,  215) ;  App.  Paris,  April  10,  1894  (21  Clunet,  878) ;  App.  Poitiers,  Oct.  28, 
1907  (4  Darras,  222).  And  the  award  will  be  enforced  in  the  same  way  as 
award  made  under  French  law.  App.  Douai,  Dec.  10,  1901  (30  Clunet,  809) ; 
App.  Toulouse,  INIay  22.  1901  (28  Clunet,  965).  Some  courts  apply,  however,  the 
rules  governing  the  enforceability  of  foreign  judgments.  App.  Paris,  Dec.  10, 
1901  (29  Clunet,  314).  Italy. — According  to  Italian  municipal  law,  the  agreement 
for  arbitration  must  provide  for  a  submission  of  the  controversy  to  an  uneven 
number  of  arbitrators  (article  8,  Code  Civ.  Proc),  and  the  award  must  be  ren- 
dered in  Italy  (article  22,  Code  Civ.  Proc).  Both  of  these  conditions  are  Tield  to  ""  '  '  ttJ^ 
be  rules  concerning  public  order :  hence  no  stipulation  for  arbitration,  made  in  -^^t^y„Jlkyf^  ^  v/f-^ 
a  foreign  country  and  valid  where  made,  will  be  enforced  or  recognized  in  Italy 
without  a  compliance  with  such  conditions.    Cass.  Turin,  June  3, 1907  (35  Clunet, 

248);    App.  Genoa,  Jan.  9,  1905,  March  6,  1906,  March  16,   1906  (34  Clunet    

193).  Germany. — A  foreign   award,   being  based,   not   upon   the  judgment   of    ^ ^^    rf^^  . 

a  court,  but  upon  the  agreement  of  the  parties,  will  be  enforced,  irrespective    (yty^*'V^>^* 
of  the  question  of  reciprocity.     R.   G.    Sept.  28,   1895   (51   SeuEfert's  Archiv,     ^i.,^*^-*^   -/^-*»^- 
159).     And  its  validity  (semble)   is  to  be  determined  exclusively  by  the  law     ^J'**''*^^      ^"^"^ 
applicable  to  the  arbitration  agreement  itself.     R.  G,  April  30,  1901  (11  Nie-    i-,... 
meyer,  445) ;  R.  G.  Sept.  17,  1901  (11  Niemeyer,  448).  .  ^v-**-^ 

3  5A  part  of  the  opinion  has  been  omitted.        ,^"trvv  i^^"*'*^       <V   \> 


l^ 


;t.-r4-^ 


jl_    oAAk»^»^ 


396  PARTICULAR  SUBJECTS.  (Part  2 

The  first  question  is,  whether  the  sales,  for  which  this  action  was 
brought,  were  made  in  the  state  of  New  Hampshire.  If  they  were  not, 
that  statute,  which  can  have  no  extraterritorial  operation,  did  not  sub- 
ject the  plaintiffs  to  any  penalty,  A  sale  has  been  defined  to  be,  "a 
transmutation  of  property  from  one  man  to  another,  in  consideration  of 
some  price,  or  recompense  in  value."  2  Bl.  Comm.  446.  Was  enough 
done  between  these  parties,  in  the  state  of  New  Hampshire,  to  pass  this 
property  to  the  defendant?  In  the  first  place,  it  does  not  appear  that 
the  orders  given  by  the  defendant,  and  assented  to  by  the  plaintiff,  in 
New  Hampshire,  pointed  to  any  particular  casks  or  packages.  The 
kind,  the  quantity,  and  the  price,  are  all  the  particulars  found  by  the 
auditor  to  have  been  agreed  on.  It  remained  for  the  vendors,  after  the 
return  of  one  of  the  plaintiffs  to  Boston,  to  fix  on  the  particular  liquors 
to  be  sent  to  answer  the  order,  either  by  separating  them  from  larger 
quantities,  or  by  designating  and  setting  apart  particular  casks  or  pack- 
ages. Indeed,  it  does  not  appear  that  the  liquors  actually  sent  were 
even  owned  by  the  plaintiffs  when  the  orders  were  given.  Besides,  un- 
der the  statute  of  frauds,  the  oral  contract  of  sale  was  not  sufficient 
to  pass  the  property.  It  is  true  it  passed  afterwards,  by  the  delivery 
to  the  carrier,  that  mode  of  delivery  being  the  one  found  by  the  audi- 
tor to  have  been  agreed  on  by  the  parties.  Hart  v.  Sattley,  3  Camp. 
528.    But  this  act  was  done  in  Massachusetts. 

To  test  this  question,  suppose  the  plaintiffs  had  been  indicted  in  New 
Hampshire  for  violating  this  penal  law,  and  the  jury  had  found  spe- 
cially the  facts  reported  by  the  auditor,  it  seems  to  me  the  plaintiffs  could 
not  have  been  convicted,  because  it  would  not  appear  that  a  complete 
sale  had  been  made  in  the  state  of  New  Hampshire.  I  am  aware  that 
there  is  a  decision  by  a  highly  respectable  court,  Territt  v.  Bartlett,  21 
Vt.  184,  that  a  similar  statute  in  the  state  of  Vermont  was  violated  by 
acts  not  distinguishable  from  those  in  the  case  at  bar.  If  this  had  been 
so  decided  in  New  Hampshire,  by  the  highest  court  of  law,  I  might 
have  felt  bound  to  yield  to  the  exposition  of  a  statute  of  that  state,  by 
that  court.  But  I  cannot  construe  a  penal  statute,  which  punishes  a 
sale,  so  broadly,  as  to  hold,  that  it  applies  to  a  mere  executory  contract 
for  a  sale.  In  my  judgment,  it  extends  only  to  executed  sales,  by  which 
the  property  passes  from  the  vendor  to  the  vendee ;  and,  in  the  ab- 
sence of  any  decision  to  the  contrary  in  New  Hampshire,  I  must  so 
hold  in  this  case.  And  if  the  acts  done  in  New  Hampshire  were  not 
sufficient  to  subject  the  plaintiffs  to  a  penalty,  there  is  no  implication 
that  those  acts  are  forbidden  by  statute ;  and  so  there  is  no  ground  to 
argue  that,  for  this  cause,  the  action  cannot  be  sustained.  I  under- 
stand the  doctrine  of  the  highest  court  of  law  in  New  Hampshire  to 
be,  that  if  a  penalty  is  affixed  to  an  act,  this  carries  with  it  an  implica- 
tion that  the  act  itself  is  forbidden ;  and  if  forbidden,  it  cannot  be  the 
ground  of  an  action.  But  if  what  was  done,  in  this  case,  at  Dover,  is 
not  by  implication  forbidden,  and  if  what  was  done  at  Boston  cannot 
be  within  any  statute  of  New  Hampshire,  the  cases  decided  in  that  state 


Ch.    2)  OBLIGATIONS.  397 

can  have  no  application.     Pray  v.  Burbank,  10  N.  H.  377;   Lewis  v. 
Welch,  14  N.  H.  294 ;  Caldwell  v.  Wentworth,  14  N.  H.  431. 

[The  learned  justice  thereupon  proceeded  to  show  that  mere  knowl- 
edge on  the  part  of  plaintiffs  that  the  defendant  intended  to  sell  the 
property  in  violation  of  the  law  of  New  Hampshire  did  not  prevent  a 
recovery.]  ^® 


FLAGG  V.  BALDWIN. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1884.    38  N.  J.  Eq.  219,  48  Am. 

Rep.  308.) 

The  bill  in  this  case  was  filed  for  the  foreclosure  of  a  mortgage  upon 
lands  in  New  Jersey  given  to  secu:e  the  payment  of  appellants'  bond. 
The  main  defense  was  that  the  contracts  out  of  which  the  bond  and 
mortgage  arose  were  v/agering  contracts,  and  illegal  and  void,  and  that 
they  could,  therefore,  not  be  enforced.  The  transactions  prior  to  the 
execution  of  the  bond  in  mortgage  took  place  wholly  within  the  state 
of  New  York,  and  the  contracts  in  question  were  made  and  were  to  be 
performed  there.     It  was  averred  in  the  bond  and  mortgage  that  the 

36Accord:    Hill  v.  Spear,  50  N.  H.  253,  9  Am.  Rep.  205  (1870). 

As  to  the  law  governing  sales  of  intoxicating  liquors,  see  15  L.  R.  A.  836- 
837,  and  61  L.  R.  A.  417-434;  and  as  to  place  of  sale  in  particular.  Brown 
V.  Wieland,  116  Iowa,  711,  89  N.  W.  17,  61  L.  R.  A.  417  (1902),  and  Webber 
V.  Howe,  36  IMich.  150,  24  Am.  Rep.  590  (1S77). 

No  recovery  can  ba  bad  if  the  soliciting  of  orders  within  the  state  is 
expressly  proliibited  by  statute.  Jones  v.  Surprise,  64  N.  H.  243,  9  Atl.  384 
(1887).  [In  Durkee  v.  Moses,  67  N.  H.  115,  23  Atl.  793  (1892),  it  was  held 
that  the  New  Hampshire  statute  was  unconstitutional,  as  it  regulated  com- 
merce among  the  states.]  In  Vermont  this  result  seems  to  have  been  reach- 
ed without  express  statutory  enactment.  Starace  v.  Rossi,  69  Vt.  303,  37 
Atl.  1109  (1897) ;  Beverwick  Brewing  Co.  v.  Oliver,  69  Vt.  323,  37  Atl.  1110 
(1897). 

If  the  vendor  actively  participates  in  the  unlawful  purpose,  no  action  will 
lie.  Gaylord  v.  Soragen,  32  Vt.  110,  76  Am.  Dec.  154  (1859).  And  it  has 
been  held  that  an  action  would  not  lie,  where  the  sale  was  made  with  knowl- 
edge of  the  seller  that  the  liquor  was  to  be  resold  by  the  purchaser  in  an- 
other state  contrary  to  its  law  and  with  a  view  to  such  resale.  Graves  v. 
Johnson,  156  Mass.  211,  30  N.  E.  818,  15  L.  R.  A.  834,  32  Am.  St.  Rep.  446 
(1892).  Under  an  express  statute  such  action  has  been  denied  to  a  vendor 
who  neither  participated  in  the  illegal  intent  of  the  purchaser  nor  had  any 
knowledge  of  such  intent.  Corbin  v.  Houlehan  (Me.)  61  Atl.  131  (1905) ;  Boehm 
v.  Allen,  102  Me.  217,  66  Atl.  474  (1906). 

As  to  law  applicable  to  sales  in  general,  see  64  L.  R.  A.  823-833. 

The  law  of  the  place  where  the  executed  contract  of  sale  was  made  has 
been  applied  to  determine  the  right  of  rescission  on  the  ground  of  fraud, 
Kline  v.  Baker,  99  Mass.  253  (1868) ;  what  constitutes  "merchantable  qual- 
ity," Ladd  v.  Dulany,  Fed.  Cas.  No.  7,971  (1809) ;  the  right  to  maintain  an 
action  for  the  purchase  price  before  the  expiration  of  the  term  of  credit, 
Jaffray  v.  Wolf,  4  Okl.  303,  47  Pac.  496  (1896) ;  and  the  existence  of  a  ven- 
dor's lien,  Mcllvaine  v.  Legarg,  36  La.  Ann.  359  (1884).  The  lien  may  not 
be  recognized  with  respect  to  local  creditors  or  purchasers  after  the  removal 
of  the  property  to  a  state  under  the  law  of  which  such  a  lien  does  not  exist. 
Barney  &  Smith  Mfg.  Co.  v.  Hart,  8  Ky.  Law  Rep.  223,  1  S.  W.  414  (1886). 
See,  also,  Tyree  v.  Sands,  24  La.  Ann..  363  (1872). 

As  to  vendor's  right  of  stoppage  in  transitu,  see  Inglis  v.  Usherwood,  1 
East,  515  (1801). 


^ 


398  PARTICULAR  SUBJECTS.  (Part  2 

parties  resided,  also,  in  that  state.  The  mortgagee  did  in  fact  reside 
there,  and  the  mortgage  was  acknowledged  there.  The  delivery  of  the 
papers  was  made  and  the  remaining  transactions  took  place  in  New 
York.  There  was  no  proof  as  to  the  law  of  New  York  with  respect 
to  wagering  contracts.^' 

Magie;,  J.^^  [After  holding  that  the  contracts  were  wagering  con- 
tracts, to  be  governed  as  to  their  validity  by  the  law  of  New  York,  and 
that  in  the  absence  of  proof  the  common  law  must  be  deemed  to  pre- 
vail in  New  York  with  respect  to  such  contracts,  under  which  they 
would  be  unobjectionable,  the  learned  justice  continued  as  follows:] 

The  enforcement  of  a  foreign  law  and  contracts  dependent  thereon 
for  validity,  within  another  jurisdiction  and  by  the  courts  of  another 
nation,  is  not  to  be  demanded  as  a  matter  of  stnct  right.  It  is  permit- 
ted, if  at^Tl,  only  trom  the  comity  which  exists  between  states  and  na- 
tions. Every  independent  community  must  judge  for  itself  how  far 
this  comity  ought  to  extend.  Certain  principles  are  well-nigh  univer- 
sally recognized  as  governing  this  subject.  It  is  everywhere  admitted 
that  a  contract  respecting  matter  malum  in  se,  or  a  contract  contra 
bonos  mores,  will  not  be  enforced  elsewhere,  however  enforceable  by 
the  lex  loci  contractus.  An  almost  complete  agreement  exists  upon  the 
proposition  that  a  contract  valid  where  made  will  not  be  enforced  by 
the  courts  of  another  country,  if,  in  doing  so,  they  must  violate  the  plain 
public  policy  of  the  country  whose  jurisdiction  is  invoked  to  enforce 
it,  or  if  its  enforcement  would  be  injurious  to  the  interest  or  conflict 
with  the  operation  of  the  public  laws  of  that  country.  Story's  Confl. 
Laws,  §  244 ;  1  Addison,  Cont.  §  241 ;  Forbes  v.  Cochrane,  2  B.  &  C. 
448;  Grell  v.  Levy,  16  C.  B.  (N.  S.)  73;  Hope  v.  Hope,  8  De  G.,  M. 
&  G.  731;  2  Kent's  Com.  475;  Bank^f  AugustaJ^_^a^^  13  Pet.  (U. 
S.)  519,  10  L.  Ed.  274;  Q^denjT'SamicrersflFTVhearl; U.  S.)  213,  6 
L.  Ed.  G06 ;  Blanchard  v.  Russell,  13  Masl.  1,  7  Am.  Dec.  106.  This 
proposition  has  been  announced  and  applied  in  our  own  state,  ^arnuni 
y.  CaiTip^  13  N.  J.  Law,  326,  25  Am.  Dec.  476 ;  Frazier  v.  Fredericks, 
"24  NTjTLaw,  162 ;  Moore  v.  Bonnell,  31  N.  J.  Law,  90 ;  Bentley  v. 
Whittemore,  19  N.  J.^Eq.  "^b^,  97  Am.  Dec.  671;  Watson  v.  Murray, 
23  N.  J.  Eq.  257;  Union  Locomotive  &  Express  Co.  v.  Erie  R.  Co., 
37  N.  J.  Law,  33. 

Since  the  courts  of  each  state  must,  at  least  in  the  absence  of  positive 
law,  determine  how  far  comity  requires  the  enforcement  of  foreign 
contracts,  it  results  that  there  is  contrariety  of  view,  and  the  proposi- 
tion above  stated  is  not  universally  admitted.  Thus,  in  New  York,  a 
contract  made  in  Kentucky,  under  a  law  of  that  state,  establishing  a  lot- 
tery for  the  benefit  of  a  college,  was  upheld,  notwithstanding  the  law  of 
New  York  prohibiting  lotteries.  Commonwealth  of  Kentucky  v.  Bass- 
ford,  6  Hill  (N.  Y.)  526.  Chief  Justice  Nelson  limited  the  cases  of 
contracts  not  enforceable,  though  valid  where  made,  to  such  as  are 

37  This  statement  of  facts  has  been   substituted  for  that  of  the  original 
ivport. 
3SA  part  of  the  opinion  has  been  omitted. 


Ch.    2)  OBLIGATIONS.  399 

plainly  contrary  to  morality.  He  gave  no  consideration  to  the  doctrine 
elsewhere  settled,  that. excludes  from  enforcement,  contracts  opposed 
to  the  public  policy  or  violative  of  a  public  law  of  the  place  of  enforce- 
ment. In  this  view,  he  seems  to  be  sustained  by  the  Court  of  Appeals. 
Thatcher  v.  Morris,  11  N.  Y.  437. 

So,  in  Massachusetts,  a  contract  arising-  out  of  a  completed  sale  of 
lottery  tickets,  in  a  state  where  such  sale  was  lawful,  was  enforced  by 
the  courts,  although  such  sale  was  there  prohibited  by  statute.  Mdn- 
tyre  v.  Parks,  3  Mete.  (Mass.)  207.  But  there  was  no  discussion  of 
principles  by  the  court.     *     *     * 

We  are  brought,  then,  to  the  question  whether  our  law  against  gam- 
ing is  such  a  public  law  and  establishes  such  a  public  policy  as  to  re- 
quire us  to  refuse  to  enforce  foreign  contracts  in  conflict  with  it,  in 
a  case  like  that  under  consideration.  I  think  this  question  must  be  an- 
swered in  the  affirmative. 

It  is  true  that,  in  Dolman  v.  Cook,  14  N.  J.  Eq.  56,  and  Campion  v. 
Kille,  1-i  N.  J.  Eq.  229,  foreign  contracts,  valid  by  the  law  of  the  state 
where  made,  were  enforced  here,  although  by  our  laws  they  were  usu- 
rious and  declared  to  be  void.  No  consideration  seems  to  have  been 
given  to  the  question  whether  our  usury  law  was  such  a  law  and  evinc- 
ed such  a  public  policy  as  required  us  to  refrain  from  enforcing  foreign 
contracts  in  conflict  with  it.  As  we  have  seen,  that  consideration  led 
our  courts  to  reject  foreign  assignments  violative  of  our  laws,  where 
the  interests  of  our  own  citizens  were  concerned.  But  a  plain  distinc- 
tion at  once  presents  itself  between  a  usury  law  and  a  law  regulating 
assignments  for  the  benefit  of  creditors,  or  a  law  against  gaming.  One 
aft'ects  only  the  parties  to  the  contract,  and  is  framed  for  the  protec- 
tion of  the  borrower.  The  others  relate  to  the  public  or  classes  of  the 
public  who  are  interested  therein  and  afifected  thereby. 

But  our  law  against  gaming  goes  further  than  to  merely  prohibit  the 
■vice  or  avoid  contracts  tainted  with  it.  It  declares  it  unlawful,  and  so 
•puts  the  contracts  beyond  the  protection  of  the  laws  or  the  right  of  ap- 
peal to  the  courts.  The  reason  and  object  of  the  law  are  obvious.  The 
vice  aimed  at  is  not  only  injurious  to  the  person  who  games,  but  wastes 
his  property,  to  the  injury  of  those  dependent  on  him,  or  who  are  to 
succeed  to  him.  It  has  its  more  public  aspect  for  if  it  be  announced 
that  a  trustee  has  been  false  to  his  trust,  or  a  public  officer  has  embez- 
zled public  funds,  by  common  consent  the  first  inquiry  is  whether  the 
defaulter  has  been  wasting  his  property  in  gambling. 

In  my  judgment,  our  law  against  gaming  is  of  such  a  character  and 
is  designed  for  the  prevention  of  a  vice,  producing  injury  so  widespread 
in  its  effect,  the  policy  evinced  thereby  is  of  such  public  interest  that 
comity  does  not  require  us  to  here  enforce  a  contract  which,  by  that  law, 
is  stigmatized  as  unlawful,  and  so  prohibited.     *     *     *  ^* 

3 9 Accord:  Pope  v.  Hanke,  155  111.  G17,  40  N.  E.  839,  28  L.  R.  A.  568  (1894) ; 
Miuzesbeimer   v.   Doolittle,  GO  N.   J.   Eq.  394,  45   Atl.   611    (1900);    Wiuward 


400  I    ,  /^        PARTICULAR  SUBJECTS.  (Part  2 


KAUFMAN  V.  GERSON. 

(Court  of  Appeal,  1904.    73  L.  J.  K.  B.  320,  1  K.  B.  [C.  A.]  591.) 

The  plaintiff,  Kaufman,  was  a  commission  merchant  in  Paris.  The 
defendant  was  the  wife  of  a  man  named  Gerson,  a  German  by  birth, 
domiciled  in  France,  and  was  induced  by  threats  of  a  criminal  prose- 
cution against  her  husband  in  France  to  give  an  undertaking  to  the 
plaintiff  to  pay  him  a  large  sum  of  money.  The  money  was  paid  to  the 
extent  of  iSOO.  over  a  series  of  years,  and  there  was  a  balance  still  left 
unpaid  of  the  sum  which  the  defendant  had  contracted  to  pay.  Suit 
was  brought  for  this  balance  in  England. 

Wright,  J.,  gave  judgment  in  favor  of  the  plaintiff  on  the  ground 
that  the  agreement  was  governed  by  the  law  of  France  and  was  valid 
according  to  French  law.    The  defendant  appealed.*" 

Montague  Shearman,  K.  C.,  and  E.  G.  Hills,  for  the  defendant.  The 
facts  show  an  iniquitous  bargain,  which  the  court  will  not  support. 
Agreements  to  stifle  prosecutions  and  agreements  which  are  inequitable 
because  of  some  oppression  or  duress — see  both  aspects  considered  in 
Williams  v.  Bayley  [1866]  35  L.  J.  Ch.  717,  L.  R.  1  H.  L.  200— will 
not  be  enforced  by  an  English  court,  although  they  may  have  been  made 
abroad  and  may  be  valid  according  to  foreign  law.  See  Hope  v.  Hope 
[1857]  26  L.  J.  Ch.  417,  8  De  G.,  M.  &  G.  731,  where  Turner,  L.  J., 
said :  "I  think  that  when  the  courts  of  one  country  are  called  upon  to 
enforce  contracts  entered  into  in  another  country,  the  question  to  be 
considered  is  not  merely  whether  the  contract  sought  to  be  enforced 
is  valid  according  to  the  laws  of  the  country  -in  which  it  was  entered 
into,  but  whether  it  is  consistent  with  the  laws  and  policy  of  the  country 
in  which  it  is  sought  to  be  enforced.  A  contract  may  be  good  by  the 
law  of  another  country,  but  if  it  be  in  breach,  fraud  or  evasion  of  the 
law  of  this  country,  or  contrary  to  its  policy,  the  courts  of  this  country 
cannot,  as  I  conceive,  be  called  upon  to  enforce  it."  In  Grell  v.  Levy 
[1864]  16  C.  B.  (N.  S.)  73,  it  was  held  that  a  champertous  agreement 
to  be  carried  into  effect  in  this  country  was  not  the  less  void  because 
made  in  a  foreign  country  where  such  a  contract  was  legal.  Again,  in 
Rousillon  v.  Rousillon  [1880]  49  L.  J.  Ch.  338,  14  Ch.  D.  351,  369, 
Fry,  J.,  said :  "It  appears  to  me,  however,  plain  on  general  principles 
that  this  court  will  not  enforce  a  contract  against  the  public  policy  of 

V.  Lincoln,  23  R.  I.  476,  51  Atl.  106,  64  D.  R.  A.  160  (1902).  Contra:  A.  G. 
Edwards  Brokerage  Co.  v.  Stevenson,  160  JNIo.  516,  61  S.  W.  617  (1901). 

The  illegality  in  the  original  consideration  will  affect,  also,  every  substi- 
tuted contract,  irrespective  of  the  place  of  its  making.  Wynne  v.  Callander, 
I  Russ.  293  (1826). 

As  to  lottery  and  gambling  contracts,  see  64  L.  R.  A.  160-171.  See,  also, 
John  D.  Lawson,  Enforcement  of  Contract  Valid  Where  Made,  but  Con- 
trary to  the  Public  Policy  of  the  State  of  the  Forum,  54  Central  Law  Journal, 
223-230.  Giulio  Dicna,  De  la  validite  des  jeux  de  bourse  dans  les  rapports 
Internationaux,  23  Clunet,  65-78,  284^294. 

4  0  This  statement  of  facts  has  been  substituted  for  that  of  the  original 
report 


Ch.    2)  OBLIGATIONS.  401 

this  country,  wherever  It  may  be  made.  It  seems  to  me  almost  absurd 
to  suppose  that  the  courts  of  this  country  should  enforce  a  contract 
which  they  consider  to  be  against  pubHc  policy  simply  because  it  hap- 
pens to  have  been  made  somewhere  else."  See,  also,  the  opinion  of 
Wilmot,  J.,  in  Robinson  v.  Bland  [1760]  1  W.  Bl.  256,  260,  to  the  same 
effect.  Santos  v.  Illidge  [1860]  29  L.  J.  C.  P  348,  8  C.  B.  (N.  S.)  861 
— a  case  relating  to  the  sale  of  slaves  in  Brazil — is  not  an  authority 
against  the  defendant,  as  the  decision  in  that  case  turned  on  the  terms 
of  the  statutes  dealing  with  the  holding  of  slaves.  Nor  is  Missouri 
Steamship  Co.,  In  re  [1889]  42  Ch.  D.  321,  against  the  defendant. 
There  a  contract  made  in  Massachusetts,  intended  to  be  governed  by 
English  law,  was,  although  void  by  the  law  of  Massachusetts,  held  en- 
forceable here,  inasmuch  as  it  was  neither  immoral  nor  forbidden  by 
positive  law.  The  agreement  in  the  present  case  comes  within  the  cate- 
gory of  contracts  referred  to  in  Westlake's  Private  International  Law 
(3d  Ed.)  §  215,  as  conflicting  "with  what  are  deemed  in  England  to  be 
essential  public  or  moral  interests" ;  and  so,  although  it  may  be  valid 
by  French  law,  it  will  not  be  enforced  by  an  English  court.  It  was  im- 
moral and  unjust  for  the  plaintiff  to  threaten  the  defendant  that  her 
husband  would  be  prosecuted  and  she  and  her  children  disgraced  if 
she  did  not  make  the  agreement  sued  on.  The  court  will  not  assist  a 
person  who  does  not  come  with  clean  hands. 

Montague  Lush,  K.  C,  and  Israel  Davis,  for  the  plaintiff.  The  mere 
fact  that  the  agreement  was  obtained  on  the  terms  that  the  husband 
should  not  be  prosecuted  is  not  bad  except  by  English  law.  An  agree- 
ment not  to  prosecute  is  good  by  French  law,  and  an  agreement  obtain- 
ed on  such  terms  does  not  amount  to  duress  in  French  law.  As  the 
contract  was  made  and  was  to  be  performed  in  France,  the  English 
courts  will  enforce  it.  There  must  be  something  more  than  a  mere 
technical  breach  of  the  law  to  avoid  a  contract  on  the  ground  of  public 
policy.  Missouri  Steamship  Co.,  In  re,  42  Ch.  D.  331 ;  Holman  v. 
Johnson  [1775]  1  Cowp.  341.  The  only  pressure  was  the  pressure  of 
the  threat  of  a  prosecution  in  France.  There  was  nothing  in  the  na- 
ture of  blackmail ;  the  plaintiff  was  not  seeking  to  make  any  profit,  but 
was  merely  seeking  to  get  back  the  money  due  to  him  by  the  defend- 
ant's husband,  for  which,  moreover,  the  defendant  was  herself  liable 
under  the  French  Code,  the  parties  having  been  married  in  France 
without  a  settlement.  The  agreement  cannot  be  impeached  on  the 
ground  that  it  is  of  a  criminal  or  wicked  or  immoral  nature — to  use  the 
language  of  Chitty,  J.,  in  Missouri  Steamship  Co.,  In  re,  42  Ch.  D.  321. 

[They  also  referred  on  this  point  to  Story's  Conflict  of  Laws,  §  245 
et  seq.] 

But,  even  assuming  that  the  agreement  might  have  been  set  aside  as 
having  been  obtained  by  undue  pressure,  the  defendant  cannot  now, 
after  having  paid  various  installments,  be  permitted  to  disaffirm  it.  She 
must  be  held  to  have  ratified  the  agreement.  Ormes  v.  Beadel  [I860] 
30  L.  J.  Ch.  1. 

LOR.CONF.L.— 26 


402  PARTICULAR  SUBJECTS.  (Part  2 

[The  question  of  the  defendant's  counterclaim  was  not  argued,  but 
the  defendant  reserved  her  rights  as  to  it  in  the  event  of  the  case  being 
taken  further.] 

Collins,  M.  R.*^  *  *  *  Two  points  have  been  taken  here — 
first,  that  the  agreement  was  bad  on  the  ground  that  it  was  made  to 
stifle  a  prosecution ;  and  secondly,  that  it  was  bad  also,  and  could  not 
be  enforced  in  England,  as  it  had  been  obtained  by  duress.  The  judge, 
on  the  evidence,  came  to  the  conclusion  that  it  had  been  clearly  estab- 
lished that  there  was  nothing  wrong  from  the  point  of  view  of  French 
law  in  agreeing  for  value  to  stifle  a  prosecution.  Any  agreement  be- 
tween the  parties  would  not  prevent  justice  taking  its  course  if  the  public 
prosecutor  chose  to  intervene,  and  as_the  coiitract  was  made  in  France 
by  persons  domiciled  there  with  a  view  to  its  performance  in  France, 
the  judge  held  that  the  defence  set  up  that  the  contract  was  bad  because 
it  was  to  stifle  a  prosecution  was  not  a  ground  upon  which  a  court  in 
England  would  stay  its  hand. 

The  other  point  set  up  by  the  defendant — namely,  that  the  circum- 
stances were  such  that  an  English  court  would  not  enforce  the  contract 
as  it  had  been  obtained  by  coercion — involves  a  question  of  fact.  Was 
the  contract  obtained  by  coercion?  It  seems  to  me  that  Mr.  Justice 
Wright  was  of  opinion  that  it  was.  He  said :  "Gerson  appropriated 
part  of  the  money  to  his  own  use  instead  of  applying  it  in  buying  skins. 
His  conduct  was  criminal  in  France,  and  a  prosecution  was  threatened. 
In  order  to  avoid  a  prosecution,  and  to  protect  the  good  name  of  Ger- 
son's  children,  his  wife,  the  present  defendant,  under  the  influence  of 
Kaufman's  threat  and  at  his  instance,  agreed  in  writing  to  make  good 
by  installments  out  of  her  own  property  the  amount  of  the  defalcation, 
on  the  express  terms  that  there  should  be  no  prosecution  on  the  part  of 
Kaufman."  When  one  reads  the  defendant's  own  evidence  upon  the 
matter,  it  seems  to  me  perfectly  clear  that  it  was  under  pressure  of  the 
threat  of  prosecution  that  she  undertook  to  sign  the  guarantee.  She 
stated  in  evidence  that  Kaufman  said  to  her  that  if  she  refused  he  would 
dishonour  her  family ;  and  that  her  only  consideration  was  her  chil- 
dren, whose  names  she  thought  would  be  dishonoured  if  their  father 
was  prosecuted  by  the  plaintiff.  In  answer  to  this  point,  that  the  con- 
tract was  obtained  by  coercion,  it  was  said  that  the  defendant  and  her 
husband  being  in  France  and  married  under  the  Code  Napoleon  there 
was  community  of  goods  between  them,  and  that  the  wife  was  civilly 
liable  with  the  husband  for  his  debts.  But,  however  that  may  be,  it  is 
quite  evident  that  the  plaintiff  was  not  content  with  civil  remedies,  such 
as  they  might  be,  against  the  wife ;  he  sought  to  obtain  from  her  some- 
thing he  was  not  entitled  to  demand,  and  he  forced  her  to  concede  to 
him  that  advantage  by  the  strongest  possible  moral  pressure — the 
threat  to  prosecute  her  husband  and  disgrace  her  and  her  children's 
names.     Yielding  to  that  pressure,  and  to  nothing  else,  she  was  con- 

41  Tho  coiicurrinf,'  opinions  of  Roiuer  and  Matliew,  L.  JJ.,  have  been 
omitted. 


Ch.    2)  OBLIGATIONS.  403 

strained  into  giving  the  guarantee,  and  she  has  paid  a  considerable  sum 
under  it.  It  was  under  a  continuous  threat  of  prosecution  being  insti- 
tuted that  she  made  the  payments  which  she  did  make.  It  was  not  un- 
til she  was  finally  driven  to  it  by  civil  proceedings  in  England  that  she 
set  up  the  defence  she  now  sets  up  and  refused  to  pay  the  unpaid  bal- 
ance which  she  had  contracted  to  pay.  The  point  is  whether  an  agree- 
ment obtained  under  these  circumstances  can  be  enforced  in  England 
or  not. 

I  do  not  deal  with  the  point  that  a  contract  to  interfere  with  the 
course  of  justice  is  one  that  would  not  be  enforced  in  this  country.  In 
this  particular  matter  the  law  of  France  differs  from  the  law  of  Eng- 
land, and  I  am  not  prepared  to  say  whether  such  a  contract  being  good 
in  France  might  or  might  not  be  enforced  here.  On  that  I  am  not  pre- 
pared to  give  a  final  opinion. 

I  now  come  to  the  real  point  in  the  case.  It  is  said  that  by  the  law 
of  France  an  agreement  obtained  by  moral  pressure  is  one  that  can  be 
enforced,  and  Mr.  Justice  Wright  seems  to  take  that  view.  It  is  clear 
that  he  thought  that  the  form  of  pressure  used  would  be  coercion  in 
English  law,  but  he  seems  to  have  thought  that  it  would  not  be  coer- 
cion by  French  law,  and  therefore  that  the  English  courts  would  en- 
force the  contract.  He  says :  "The  second  ground  on  which  the  con- 
tract in  the  present  case  is  impeached  is  that  it  was  obtained  by  the  un- 
due influence  or  duress  of  a  threat  to  prosecute  the  husband  for  crime. 
If  this  objection  is  to  be  regarded  as  based  on  considerations  of  public 
policy,  the  same  answer  applies  as  in  the  case  of  the  first  objection.  It 
seems,  however,  to  be  more  in  the  nature  of  an  objection  to  the  proof 
of  consent  of  the  defendant  to  the  contract,  a  consent  induced  by  duress 
or  undue  influence  being  by  English  law  treated  as  no  consent.  If  this 
be  the  correct  view,  it  would  seem_that  theJa-W  nf  tlT£-co44atix_iiL3^hich 
the  contract  is  made  and~iTto  beperformed  and  in  which_the_^arties 
are  domiciled,  ou^4Tt''to"~prevatrunless__there  is  sjich-^ttress  as  must  bg* 
considered  to  avoid'THF  contract  under  any  but  unreasonable  and  un- 
civilizQ^d  instituS5qs_of  law-— ar~descriptiTT!T~vvlTrch  woulobe  applicable 
to  such  a  case  as  tliaFof  consent  obtained,  e.  g.,  by  physical  torture,  or 
by  the  use  of  drugs,  but  which  cannot  properly  be  applied  to  this  case." 
The  whole  point  of  the  judgment  is  contained  in  these  last  words.  .  The 
judge  seems  to  admit  that  if  the  contract  had  been  obtained  hy  phys- 
ical violence,  as,  for  example,  by  the  use  of  a  pistol,  the  contract  would 
not  be  enforceable  in  an  English  court,  whatever  the  courts  of  other 
countries  would  do.  But  how  does  it  matter  in  what  manner  the  coer- 
cion is  applied  if  the  will  is  coerced?  The  question  is,  was  there  coer- 
cion? Some  people  are  more  impressed  by  moral  than  by  physical  co- 
ercion. The  coercion  in  this  case  was  a  threat  to  prosecute  the  husband 
and  disgracFl^j^fe^atid'thlldreh,  antfto  say  that  that  is  not  coercion 
is  impossible.  —Then  it  was  said  that,  unless  there  is  a  principle  uni- 
versally recognized  by  all  civilized  countries  under  which  the  courts 
of  those  countries  would  refuse  to  enforce  such  a  contract,  we  are  not 


iOi  PARTICULAR  SUBJECTS.  (Part  2 

entitled  to  apply  that  principle  in  England  in  such  a  case  as  the  present, 
if  it  can  be  shown  that  a  civilized  country — France  in  this  case — does 
not  accept  that  principle,  and  would  enforce  such  a  contract.  The  au- 
thorities do  not  bear  out  that  proposition.  In  Story's  Conflict  of  Laws, 
§  258,  it  is  said,  in  reference  to  contracts  which  in  their  own  nature 
are  founded  in  moral  turpitude  and  are  inconsistent  with  the  good 
order  and  solid  interests  of  society,  that  "even  though  they  might  be 
held  valid  in  the  country  where  they  are  made,  would  be  held  void  else- 
where, or  at  least  ought  to  be,  if  the  dictates  of  Christian  morality  or 
of  even  natural  justice  are  allowed  to  have  their  due  force  and  influ- 
ence in  the  administration  of  international  jurisprudence."  The  court 
called  upon  to  enforce  a  foreign  contract  will  enquire  whether  it  vio- 
lates such  principles.  It  is  a  principle  of  our  courts  that  a  person  who 
comes  to  seek  a  remedy  must  come  with  clean  hands ;  and  if  he  is  ob- 
liged to  aver  something  against  public  morality  which  would  debar  him 
from  obtaining  relief  if  the  contract  were  made  here,  he  is  debarred 
from  suing  here  on  a  contract  made  abroad  and  which  may  be  good  by 
foreign  law;  the  fact,  that  in  other  countries  he  might  be  allowed  to 
sue  in  such  circumstances  does  not  control  the  English  courts.  I  have 
already  read  article  258  of  Story's  Conflict  of  Laws.  The  point  is  also 
dealt  with  in  Westlake's  Private  International  Law,  where  it  is  said 
(section  215):  "Where  a  contract  conflicts  with  what  are  deemed  in 
England  to  be  essential  public  or  moral  interests,  it  cannot  be  enforced 
here  notwithstanding  that  it  may  have  been  valid  by  its  proper  law. 
*  *  *  Section  214  may  be  referred  to  the  same  principle,  but  the  cas- 
es in  which  a  breach  of  English  law  is  contemplated  may  usefully  be  kept 
distinct  from  those  in  which  English  law  declines  for  other  reasons  to 
aid  a  contract.  The  difficulty  in  every  particular  instance  cannot  be 
with  regard  to  the  principle,  but  merely  whether  the  public  or  moral 
interests  concerned  are  essential  enough  to  call  it  into  operation;  and 
where  a  breach  of  English  law  is  not  contemplated,  this  is  necessarily 
a  question  on  which  there  is  room  for  much  difference  of  opinion 
among  judges."  Here  the  point  is  whether  a  contract  obtained  by  such 
moral  pressure  as  I  have  mentioned  is  one  which  an  English  court  will 
enforce.  In  my  opinion,  the  principle  to  which  I  have  referred,  that  a 
contract  obtained  by  coercion  will  not  be  enforced,  is  one  which  ought 
to  exist  universally,  even  though  it  may  not  in  fact  be  acted  upon  in 
some  countries.  This  court  will  not  violate  its  own  principles  by  giv- 
ing effect  to  a  bargain  which  has  been  brought  about  by  coercion.  That 
is  not  inconsistent  with  any  of  the  authorities  cited  to  us,  and  it  is  cer- 
tainly supported  by  more  than  one  of  the  decided  cases,  at  all  events 
by  weighty  dicta  in  these  cases;  in  particular  we  have  those  of  Lord 
Justice  Turner  in  Hope  v.  Hope,  2G  L.  J.  Ch.  417,  8  De  G.,  M.  &  G. 
731 — dicta  from  which  I  do  not  think  Lord  Justice  Knight-Bruce  dis- 
sented. In  another  case — Rousillon  v.  Rousillon,  49  L.  J.  Ch.  338,  14 
Ch.  D.  351,  369 — Mr.  Justice  Fry  formulated  the  same  principle.  No 
case  has  been  cited  to  us  which  conflicts  with  those  views.    On  broad 


Ch.   2)  OBLIGATIONS.  405 

general  principles  I  am  of  opinion  that  the  defendant  is  entitled  to  the 
protection  of  this  court  in  refusing  to  give  effect  to  a  contract  which 
ought  never  to  have  been  made.     The  appeal  must  therefore  be  al-  / 

^  jVeuA  ^"^  '-'^  ""■ ' '^''-'ftr  Special  Contracts.  /aj^   ^'  ^ 

^>     I     \  \  (A)  Agency  and  Partnership. 

-^^  ^Y^       /'  KING  V.  SARRIA. '  ^    .     . 

'      (Court  of  Appeals  of  New  York,  1877.    69  N.  Y.  24,  25  Am.^Rep.  128.) 

FoLGER,  J.^^  The  plaintiffs  seek  to  recover  a  sum  of  money  from 
the  defendant  Sarria,  upon  contract.  They  do  not  show  that  he  in 
person  made  with  them  the  contract  which  they  allege.  It  is,  in- 
deed, one  of  the  conceded  facts  in  the  case  that  the  contract  was  made, 
as  matter  of  fact,  by  persons  other  than  Sarria.  To  succeed,  then, 
in  their  action,  they  must  show  that  those  persons  in  some  way  rep- 
resented Sarria,  and  had  authority  to  bind  him  thereto,  to  the  full 
extent  to  which  the  plaintiffs  seek  to  hold  him.  To  show  such  au- 
thority, proof  is  made  that  Sarria  was  a  partner  with  Grau  &  Lo- 
pez, and  that  the  latter  two,  under  the  firm  name  of  Grau,  Lopez  & 
Co.,  made  the  contract.  If  nothing  more  appeared  in  the  case,  this 
would  sufiice  for  the  plaintiffs ;  for,  by  virtue  of  the  relation  of  part- 
nership, one  partner  becomes  the  general  agent  for  the  other,  as  to  all 
matters  within  the  scope  of  the  partnership  dealings,  and  has  there- 
by given  to  him  all  authority  needful  for  carrying  on  the  partner- 
ship, and  which  is  usually  exercised  by  partners  in  that  business.  Haw- 
ken  V.  Bourne,  8  M.  &  W.  703.  Indeed,  it  is  as  agent  that  the  power 
of  one  partner  to  bind  his  copartner  is  obtained  and  exercised.  The  . 
law  of  partnership  is  a  branch  of  the  law  of  principal  and  agent; 
(Cox  V.  Hickman,  8  H.  of  L.  Cas.,  268;  Baring  v.  Lyman,  1  Story 
[U.  S.]  396,  Fed.  Cas.  No.  983 ;  Worrall  v.  Munn,  5  N.  Y.  229,  55 
Am.  Dec.  330).  In  the  case  first  above  cited  (8  M.  &  W.  703),  it  is 
added:  That  any  restriction  which  by  agreement  amongst  the  part- 
ners is  attempted  to  be  imposed  upon  the  authority  which  one  part-  ^ 
ner  possesses  as  the  general  agent  of  the  other,  is  operative  only  be- 
tween the  partners  themselves,  and  does  not  limit  the  authority  as 
to  third  persons,  who  acquire  rights  by  its  exercise,  unless  they  know 

4  2  In  this  country  an  action  for  the  price  of  slaves  has  been  allowed  in 
states  where  slavery  was  prohibited,  the  sale  being  valid  where  made.  Os- 
born  V.  Nicholson,  13  Wall.  (U.  S.)  G.j4,  20  L.  Ed.  689  (1S71) ;  Greenwood 
v.  Curtis.  6  Mass.  358,  4  Am.  Doc.  145  (1810) ;  Roundtree  v.  Baker,  52  111. 
241,  4  Am.  Rep.  597  (1869).  See  Wald's  Pollock  on  Contracts  (Williston's 
Ed.)  509-511 ;    Minor,  Conflict  of  Laws,  §  9. 

43  A  part  of  the  opinion  only  is  given. 


I 


406 


PARTICULAR  SUBJECTS. 


(Part  2 


that  such  restriction  has  been  made.  It  is  manifest,  however,  that 
this  remark  is  to  be  qiiahfied,  when  taken  in  connection  with  any 
statute  law,  which  has  proAnded  for  the  formation  of  limited  part- 
nerships, where  that  statute  law  is  operative.  A  due  observance  of 
such  statutory  provisions  limits  the  liability  of  the  special  partner. 
It  limits,  too,  the  authority  of  the  general  partner,  as  the  agent  of  the 
special  partner,  and  fixes  beforehand  the  extent  to  which,  as  agent, 
he  may  bind  the  special  partner.  It  is  hardly  necessary  to  say  that 
when  a  limited  partnership  is  duly  formed  and  carried  on  under  our 
statute,  though  the  general  partner  is  the  agent  for  all  the  partners, 
with  powers  full  enough  to  transact  all  the  business  of  the  firm,  and 
to  bind  it  to  all  contracts  within  the  scope  of  that  business,  he  gets 
no  authority,  from  his  relation  as  partner  and  agent  of  the  special 
member  of  the  firm,  to  fix  upon  him  any  greater  liability  than  that 
which  has  been  stipulated  for.  These  principles  are  stated  here,-  not 
as  new  or  forgotten  by  any  one,  but  as  the  basis  upon  which  the  de- 
termination of  this  case  will  rest. 

It  turned  out  that  the  partnership  of  Grau,  Lopez  &  Co.  was  cre- 
ated by  a  formal  instrument  in  writing,  and  that,  by  its  terms,  the 
liability  of  Sarria  was  special,  and  limited  in  extent  to  a  fixed  amount. 
That  instrument  (it  is  found  as  fact  by  the  learned  referee),  and 
all  the  doings  of  the  three  partners  under  it,  have  been  in  due  accord 
with  the  Commercial  Code  of  Spain,  of  which  nation  they  w^ere  citi- 
zens, and  under  whose  government  and  laws  they  were  living  and 
acting  when  they  executed  the  instrument,  and  formed  and  carried 
on  the  partnership.  And  it  is  proyeri.  and  found  as  fact  in  the  case, 
that  when  in  due  pursuance  of  tTieSpanish  law,  a  person  TiasTasdid 
Sarria,  entered  into  such  a  partnership  with  others,  and  has,  as  did 
Sarria  and  his  partners,  duly  observed  and  carried  out  the  provi- 
sions of  the  law  and  the  terms  of  their  agreement,  the  liability  of  the 
special  partner,  as  was  Sarria,  is  limited  to  the  amount  of  funds  which 
he  has  contributed  according  to  his  agreement.  It  is  well  to  observe 
here,  that  the  learned  referee  has  found  that  Sarria  never  had  any 
partnership  connection  with  Grau  &  Lopez,  other  than  that  of  a  lim- 
ited partner;  that  he  did  not  use,  nor  permit  to  be  used,  his  name  in 
the  firm  name ;  that  he  did  not,  by  any  representation,  act  or  omis- 
sion, hold  himself  out,  or  render  himself  liable,  as  a  general  partner. 
We  have  then,  Sarria  himself  making,  in  person,  no  contract  with 
the  plaintiffs,  and  giving  a  special  and  express  authority  only,  to 
Grau  &  Lopez  to  make  one,  which  authority  was  in  exact  pursuance 
of  law.  Those  who  deal  with  one  as  agent  do  so  at  their  peril,  if  it 
turns  out  that  he  had  no  authority  from  a  principal ;  and  where  they 
rely  upon  his  delegated  authority  as  that  of  a  partner,  and  know;  that 
the  partnership  was  created  in  another  country,  must  they  not  look 
to  it,  to  see  how  far  that  law,  and  the  partnership  underTt,  give  pow- 
er to  the  acting  partner?  As  then,  the  power  of  Grau  &  Lopez  to 
bind  Sarria  by  contract  was  that  of  partners,  that  is,  of  agents;    and 


Ch.    2)  OBLIGATIONS.  407 

as  their  authority  was  lawfully  restricted,  so  that  they  could  not  bind 
him  in  a  liability  greater  than  that  named  in  the  contract  of  partner- 
ship, it  seems  to  follow  that  the  plaintiffs  have  no  contract  which 
can  be  enforced  against  Sarria,  otherwise  or  further,  than  is  provid- 
ed for  by  the  terms  of  that  authority.  Nor  did  Grau  &  Lopez  make 
the  contract  with  the  plaintiffs  in  the  name  of  Sarria,  nor  with  any 
special  claim  of  right  to  represent  him.  They  made  it  in  the  name 
of  Grau,  Lopez  &  Co.,  and  claiming  only  to  represent  that  partnership. 
As  to  Sarria,  the  unnamed  partner,  they  were  agents,  acting  under 
an  authority  special,  express,  limited,  and  could  give  to  the  plaintiffs 
no  more  claim  upon  Sarria  than  such  an  authority  empowered  them.* 
The  plaintiffs  were  subject,  in  these  dealings  with  Sarria,  to  the  lim- 
itations which  he  had  lawfully  put  upon  the  powers  of  his  agents. 
Again,  to  state  familiar  doctrine,  no  one,  in  dealing  with  an  agent,  ^ 

may  hold  the  principal  to  a  contract  which  was  not  within  the  au- 
thority of  the  agent  to  make ;  nor  where  there  is  an  express  written 
authority,  is  it  to  be  enlarged  by  parol,  or  added  to  by  implication. 
It  is  to  be  construed,  as  to  its  nature  and  extent,  according  to  the 
force  of  the  terms  used,  and  the  objects  to  be  accomplished. 

But  it  is  claimed  by  the  learned  counsel  for  the  plaintiff  that  the 
Commercial    Code    of    Spain   cannot   have   an   extraterritorial    effect; 
and  that  one  dealing  in  this  state,  in  which  that  law  does  not  rule,^ 
cannot  avail  himself  of  its  effect.     If  this  be  so,  it  must  be  because  \    v-^-u-a-* — 
the  law  of  this  state  forbids  a  foreigner,  in  such  a  case  as  this,  from  )  cx-^^^cZa—^ 
invoking  the  aid  of  any  law  of  his  domicile.     But  one  country  rec-    ^   /no^ 

ognizes  and  admits  the  operation  within  its  own  jurisdiction,  of  the    \        . 

laws  of  another,  when  not  contrary  to  its  own  public  policy,  nor  to     |  ^"^  *■  '"^^ 
abstract  justice,  nor  pure  morals.     It  does  this  on  the  principle  of      |  X2^^Ct^v*:«:*</ 
comity.     It  has  been  so  long  practiced  that  it  is  stated  as  a  principle       \ 
of  private  international  jurisprudence;    that  rights  which  have  once        ( 
well  accrued  by  the  law  of  the  appropriate  sovereign  are  treated  as        I 
valid  everywhere.     Westlake  on   Priv.  Int.  Law,  art.   58.  * 

The  principle  from  which  originates  the  influence  exercised  by  the    ^  ^2^% 
law  of  a  foreigTi  state,  in  determining  the  status  or  rights  of  its  sub-     I     ^/ 
jects  in  another  country,  is  thus  well  stated.     It  is  the  necessary  inter-     \       ^        /) 
course  of  the  subjects  of  independent  governments^  which  gives  rise     |    (/\r<t/0<- 
to  a  sort  of  compact,  that  their  municipal  institutions  shall  receive  a 
degree  of  reciprocal  efficacy  and  sanction  within  their  respective  do- 
minions.    It  is  not  the  statutes  of  one  community  which  extend  their 
controlling  power  into  the  territories  of  another ;    it  is  the  sovereign 
of  each  who  adopts  the  foreign  rule,  and  applies  it  to  those  particu- 
lar cases  in  which  it  is  found  necessary  to  protect  and  cherish  the 
mutual  intercourse  of  his  subjects,  with  those  of  the  country  whose 
laws  he  adopts.     Per  Sir  Samuel  Romilly,  arguendo,  Shedden  v.  Pat- 
rick, 1  Macqueen's  H.  of  L.  Cases,  554. 

It  cannot  be  said  that  there  is  a  rule  of  exclusion,  on  account  of 
this  partTcular  law  being  contrary  to  our  public  policy.     It  much  re- 


408  PARTICULAR  SUBJECTS.  (Part  S 

sembles  our  own  statute  for  the  formation  of  limited  partnerships, 
and,  with  some  difference  in  detail,  it  aims  at  the  same  beneficial  re- 
sult, which  ours  has  in  view ;  nor  may  we  say  with  our  statute  be- 
fore us,  that  the  law  is  opposed  to  good  morals  or  abstract  justice. 
There  cannot  be  that  exclusion,  because  it  is  a  rule  of  our  law  not 
to  give,  in  any  case,  to  a  foreigner  the  benefit  of  the  law  of  his  dom- 
icile. 

Mr.  Nash  was  correct,  in  opening  his  argument,  in  saying  that  this 
is  a  case  of  first  impression  in  this  state.  Hence  it  is,  that  in  look- 
ing for  the  reasons  upon  which  it  is  to  be  decided,  we  have  to  be  gov- 
erned by  the  analogies  of  the  law,  rather  than  cases  in  point.  Let  us 
see  where  those  analogies  tend.  If  one  marry,  where  marriage  is 
only  a  civil  contract,  his  marital  relation  will  be  held  valid,  in  a  coun- 
try where  a  religious  ceremony  is,  by  its  law,  deemed  vital.  The  same 
principle  prevails  with  us,  though  not  called  into  application  by  such 
a  state  of  facts.  It  is  an  established  principle  that  the  law  of  the 
place  where  contracts  purely  personal  are  made,  must  govern  as  to 
their  construction  and  validity,  unless  they  are  made  to  be  perform- 
ed in  another  state  or  country.  Curtis  v.  Leavitt,  15  N.  Y.  227 ;  Chap- 
man V.  Robertson,  6  Paige,  627,  31  Am.  Dec.  264.  This  contract  of 
partnership  was  made  to  be  performed  in  Cuba.  The  contract  made 
■  by  the  partnership  with  the  plaintiffs,  it  may  be  conceded,  was  made 
in  New  York,  to  be  performed  here.  The  contract  with  the  plain- 
tiffs will  be  construed  and  enforced  by  the  laws  of  this  state,  and  they 
will  determine  the  nature  and  extent  of  the  liability  upon  it,  of  the 
partnership,  the  maker  of  it.  The  former,  the  contract  of  partner- 
ship, between  the  members  of  the  firm,  will  be  construed  and  weigh- 
ed by  the  laws  of  Spain,  and  they  will  determine  the  liability  of  Sar- 
ria,  and  the  extent  of  the  authority  given  by  him  to  Grau  and  Lopez. 
In  Commonwealth  of  Kentucky  v.  Bass  ford,  6  Hill,  526,  the  Su- 
preme Court  of  this  state  maintained  an  action  on  a  bond,  given 
to  secure  the  payment  of  money,  to  be  raised  and  distributed  by  a 
lottery,  on  the  ground  that  it  was  a  valid  and  legal  obligation  in 
Kentucky,  where  it  was  assumed  that  it  was  made,  and  where  it  was 
to  be  executed,  though  opposed  to  the  statutory  policy  of  this  state. 
And  the  rule  has  been  so  far  carried,  in  one  jurisdiction,  in  recog- 
nizing the  law  of  the  domicile,  as  to  enforce  a  claim  of  property  in 
slaves  (Madrazo  v.  Willes,  3  Barn.  &  Aid.  353;  see,  also,  Green- 
wood V.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145 ;  Commonwealth  v.  Aves, 
18  Pick.  [Mass.]  215;  The  Antelope,  10  Wheat.  [U.  S.]  66,  6  L. 
Ed.  268)  ;  and  so  far  in  another  jurisdiction  as  to  hold  good  a  sale 
of  lottery  tickets  in  this  state  (Mclntyre  v.  Parks,  3  Mete.  [Mass.] 
207). 

There  is  a  close  analogy  between  this  case  and  questions  arising 
as  to  the  authority  of  the  master  of  a  vessel  to  bind  his  owners  in 
a  foreign  port.  Though  the  solution  of  the  latter  depends  upon 
the  rules  of  the  maritime  law  more  particularly,  yet  the  relation  of 


Ch.   2)  OBLIGATIONS.  409 

the  master  and  the  owners  is  but  a  branch  of  the  general  law  of  prin- 
cipal and  agent,  and  so  the  ultimate  reason  of  each  staris  from  the 
same  root.  It  is  not  a  new  doctrine,  that  a  master  of  a  vessel  can- 
not bind  her  owners,  in  a  foreign  port,  to  any  greater  liability  than 
will  be  recognized  by  the  law  of  their  domicile.  Pope  v.  Nicker- 
son,  3  Story,  465,  Fed.  Cas.  No.  11,274.  And  the  rule  there  laid 
down  has  been  recognized  and  applied  in  the  Court  of  Queen's  Bench, 
on  the  principle  that  the  power  of  the  master  to  bind  the  owners 
personally  is  but  a  branch  of  the  general  law  of  agency.  Lloyd  v. 
Guibert,  6  Best  &  Smith,  100;  s.  c,  in  Exch.  Ch.,  Id.  That  case, 
also,  in  its  reasoning  recognizes  the  distinction,  which  we  have  stat- 
ed, between  the  law  which  is  to  affect  the  question  of  the  authority 
to  make  a  contract,  and  that  which  is  to  determine  the  validity  and 
effect  of  the  contract  when  made.  It  was  urged  there,  too,  by  coun- 
sel, but  without  effect,  that  the  law  of  the  place  where  the  contract 
was  made,  and  of  the  place  where  it  was  to  be  performed,  was  dif- 
ferent from  the  law  of  the  domicile  of  the  defendants.  It  was  also 
urged  that  the  contract  entered  into  was  bona  fide,  in  the  ordinary 
course  of  business  by  the  master,  and  within  the  scope  of  his  osten- 
sible authority  to  contract;  and  that  his  power  could  not  be  narrow- 
ed by  provisions  of  foreign  law,  unknown  to  the  party  dealing  with 
him,  more  than  by  secret  instructions ;  but  urged  without  avail.  So, 
also,  in  the  case  of  The  Moxham,  in  the  English  Court  of  Appeal 
(Law  Rep.  1876,  part  6,  June  1,  p.  107),  it  is  pertinently  said:  "One 
can  understand  that  a  contract  between  master  and  servant,  or  the 
relations  between  principal  and  agent,  may  aft'ect  a  contract  made  by 
the  agent,  qua  agent,  with  foreigners ;  that  is  to  say,  it  may  affect 
the  nature  and  extent  of  his  agency." 

So,  too,  in  actions  of  tort,  it  has  been  held  that  an  extraterrito- 
rial law  will  furnish  a  defense  in  the  courts  of  England.  Philips  v. 
Eyre,  Law  Rep.  6  Q.  B.  1.  It  is  said  that  an  act  committed  abroad, 
if  valid  and  unquestionable  by  the  law  of  the  place,  cannot,  so  far 
as  civil  liability  is  concerned,  be  drawn  in  question  elsewhere,  un- 
less by  force  of  some  distinct,  exceptional  legislation.  See,  also,  Do- 
bree  v.  Napier,  2  Bing.  N.  C.  781. 

The  eft'ect  of  the  judgments  in  these  cases  is  this:  That  where 
the  essentials,  o^  ^  contract  made  under  foreign  law,  are  not  hostile 
to  the  law  and  policy  of  this  state,  the  contract  may  be  relied  upon 
and  availed  oTliT'the^ courts  of  this  state.  If  the  substance  of  the 
contract  is  against  that  law  and  policy,  our  judicatories  will  refuse 
to  entertain  it  and  give  it  effect.  Hence  the  contract  of  partnership 
made  by  Sarria,  in  Cuba,  may  be  availed  of  by  him  here.     *     *     * 

Judgment  affirmed.** 

4*  Accord:  Germany,  O.  A.  G.  Liibeck,  March  31,  1846  (2  Seuffert's  Archiv, 
324) ;  A.  G.  Celle.  May  31,  1876  (31  Seuffert's  Archiv,  385).  France,  Origans, 
Dec.  12,  1904  (1  Darras,  502),  semble. 


410  PARTICULAR  SUBJECTS.  (Part  2 

CHATENAY  v.  BRAZILIAN  SUBMARINE  TELEGRAPH  CO. 

(Court  of  Appeal,  1891.     1  Q.  B.  79,  GO  L.  J.  Q.  B.  295.) 

Appeal  from  a  judgment  of  Day,  J.,  on  a  preliminary  issue. 

In  the  year  1880  the  plaintiff,  who  was  a  Brazilian  subject  and  resi- 
dent in  Brazil,  executed,  in  favour  of  one  Broe,  a  stockbroker  carry- 
ing on  business  in  the  city  of  London,  a  power  of  attorney  to  purchase 
and  sell  shares  in  public  companies  and  public  funds.  The  power  of 
attorney  was  in  the  Portuguese  language,  and  was  executed  by  the 
plaintiff  in  Brazil  with  the  formalities  required  by  the  Brazilian  law. 
Bfoe,  purporting  to  act  under  the  power  of  attorney,  disposed  of  cer- 
tain shares  in  the  defendant  company  which  were  the  property  of 
the  plaintiff  and  registered  in  his  name.  Broe  did  not  account  to  the 
plaintiff  for  the  proceeds  of  the  sale  of  these  shares,  the  purchasers 
of  which  were  registered  as  owners  in  the  books  of  the  company. 
The  plaintiff  issued  an  originating  summons  asking  for  the  rectifica- 
tion of  the  register  by  inserting  therein  his  name  as  holder  of  ^  the 
shares,  and  an  issue  was  directed  to  be  tried  by  a  jury  in  London  to 
determine  whether  the  plaintiff  was  entitled  to  have  the  register  ^o 
rectified.'  Before  this  issue  came  on  for  trial  an  order  was  made  that 
the"  question  whether  Brazilian  or  English  law  was  to  govern "  the 
construction  of  the  power  of  attorney  should  be  tried  by  a  judge  with- 
out'^Tjury.  'The  mattejL.came  on  before  Day,  J.,  who  decided  that 
English  law  was  to  govern  the  construction  of  the  power  of  ^attorney, 
and  a  certificate^o  that  effect  was  accordingly  made  out. 

The  defendants  appealed. 

Lord  EsHER,  M.  R.*^  In  this  case  a  person  resident  in  Brazil  and 
can-ying  on  business  there  wrote  down  that  which  he  intended  to  be  an 
authority  to  an  agent,  if  that  agent  would  accept  the  delegation.  The 
person  whom  he  desired  to  be  his  delegate  did  afterwards  accept  that 
delegation.  The  question  raised  is,  what  is  the  meaning  of  that  docu- 
ment? Now,  I  agree  that  it  has  one  meaning,  and  no  more;  and  the 
question  is,  what  was  the  meaning  of  the  plaintiff  when  he  wrote  that 
document?  The  Court  has  to  ascertain  that  meaning  from  a  consider- 
ation of  what  it  is  that  was  written  under  the  circumstances  in  which 
it  was  written ;  that  is, '  in  other  words,  having  regard  to  the  words 
used,  and  to  the  surrounding  circumstances  at  the  time  they  were  used. 

Now,  this  writing  was  a  business  document,  written  in  Brazil  in 
the  Brazilian  language,  and  with  the  formalities  necessary  according 
to  the  Brazilian  law  and  custom,  by  a  man  of  business  carrying  on 
business  in  Brazil.  An  English  Court  has  to  construe  it,  and  the  first 
thing,  therefore,  that  the  English  Court  has  to  do  is  to  get  a  trans- 
lation of  the  language  used  in  the  document.  Making  a  translation 
is  not  a  mere  question  of  trying  to  find  out  in  a  dictionary  the  words 

*2  The  concurring,'  opinion  of  Lindley,  L.  J.,  has  been  omitted. 


I 


Ch.    2)  OBLIGATIONS.  411 

which  are  given  as  the  equivalent  of  the  words  of  the  document;  a 
true  translation  is  the  putting  into  English  that  which  is  the  exact 
effect  of  the  language  used  under  the  circumstances.  To  get  at  this 
in  the  present  case  you  must  get  the  words  in  English  which  in  busi- 
ness have  the  equivalent  meaning  of  the  words  in  Brazilian,  as  used 
in  Brazil,  under  the  circumstances.  Therefore  you  would  want  a  com- 
petent translator,  competent  to  translate  in  that  way,  and,  if  the  words 
in  Brazil  had  in  business  a  particular  meaning  different  from  their 
ordinary  meaning,  you  would  want  an  expert  to  say  what  is  that  mean- 
ing. Amongst  those  experts  you 'might  want  a  Brazilian  lawyer — and 
a  Brazilian  lawyer  for  that  purpose  would  be  an  expert.  That  is  the 
first  thing  the  Court  has  to  do.  Then,  when  the  Court  has  got  a  cor- 
rect translation  into  English,  it  has  to  do  what  it  always  has  to  do  in 
the  case  of  any  such  document — either  a  contract,  or  such  an  authority 
as  this — that  is  to  say,  determine  what  is  to  be  taken  to  be  the  mean- 
ing of  the  party  at  the  time  he  wrote  it,  and  what  is  to  be  inferred 
from  the  language  which  he  has  used.  There  are  certain  inferences 
which  are  adopted  in  ascertaining  the  meaning  of  the  language  used, 
unless  in  the  particular  instance  the  contrary  intention  appears.  One 
inference  which  has  been  always  adopted  is  this :  if  a  contract  is 
made  in  a  country  to  be  executed  in  that  country,  unless  there  appears 
something  to  the  contrary,  you  take  it  that  the  parties  must  have  in- 
tended that  that  contract,  as  to  its  construction,  and  as  to  its  effect, 
and  the  mode  of  carrying  it  out  (which  really  are  the  result  of  its 
construction),  is  to  be  construed  according  to  the  law  of  the  country 
where  it  was  made,^;^ut  the  business  sense  of  all  business  men  has 
come  to  this  conclusion,  that  if  a  contract  is  made  in  one  country  to 
be  carried  out  between  the  parties  in  another  country,  either  in  whole  , 

or  in  part,  unless  there  appears  something  to  the  contrary,  it  is  to  be  ^-o 

concluded  that  the  parties  must  have  intended  that  it  should  be  carried 
out  according  to  the  law  of  that  other  country.  Otherwise  a  very 
strange  state  of  things  would  arise,  for  it  is  hardly  conceivable  that 
persons  should  enter  into  a  contract  to  be  carried  out  in  a  country  con- 
trary to  the  laws  of  that  country.  That  is  not  to  be  taken  to  be  the 
meaning  of  the  parties,  unless  they  take  very  particular  care  to  enunci- 
ate such  a  strange  conclusion.  Therefore  the  law  has  said,  that  if  the 
contract  is  to  be  carried  out  in  whoIeTn  Another  country,  it  is  to  be 
carried  out  wholly  according  to  the  law  of  that  country,  and  that 
must  have  beeiT'the'rneaning  of  the  parties.  But  if  it  is  to  be  carried 
out  partly  in  another  country  than  that  in  which  it  is  made,  that  part 
of  it  which  is  to  be  carried  out  in  that  other  country,  unless  something 
appears  to  the  contrary,  is  taken  to  have  been  intended  to  be  carried 
out  according  to  the  laws  of  that  country. 

Now,  applying  those  rules  to  the  present  case,  the  first  thing  to  be 
done  is  to  get  at  the  true  construction  of  the  language  used  in  the 
authority.  When  the  plaintiff  used  the  Brazilian  language  in  this 
document  he  must  have  used  it  in  the  business  sense  given  to  it  in 


VN- 


412  PARTICULAR  SUBJECTS.  (Part  2 

Brazil.  Therefore,  that  has  to  be  ascertained;  and  then  having  got 
that,  the  equivalent  in  the  EngHsh  language  must  be  found.  Having 
got  in  English  the  equivalent  of  the  Brazilian  words,  we  have  to  see 
what  the  meaning  of  the  language  so  used  is.  If_jt_a£pears  that_the 
contract  is  to  be  performed  in  Brazil  wholly — that  is  to  say,  that  the 
contract  shall  be  performed  according  to  Brazilian  law — that  is  the 
construction  of  it,  and  that  is  the  meaning  of  the  parties;  but  if  it 
appears  that  it  was  to  ,be  wholly  carried  out  in  England,  we  should 
infer  that  the  meaning  of  the  parties  and  the  true  construction  of  the 
contract  were  that  it  was  to  be  carried  out  according  to  English  law. 
If  we  find  that  the  authority  might  be  carried  out  in  England,  or  in 
France,  or  in  any  oither  country,  we  come  to  the  conclusion  that  it 
must  have  been  intended  that  in  any  country  where  in  fact  it  was  to 
be  carried  out,  that  part  of  it  which  was  to  be  carried  out  in  t'lat 
country  was  to  be  carried  out  according  to  the  law  of  that  country. 
That  would  be  putting  one  construction  only  on  the  document,  and 
not  putting  a  different  construction  on  if  in  different  countries.  The 
one  meaning  that  he  had  was:  "I  give  an  authority  which  if  carried 
out  in  England  is  to  be  carried  out  according  to  the  law  of  England ;  if 
in  France,  according  to  the  law  of  France."  That  is  one  meaning, 
though  this  authority  is  to  be  applied  in  a  different  way  in  different 
places. 

If  that  is  so,  then  the  way  to  express  that  in  the  present  case  is  this : 
This  authority  was  given  in  Brazil,  and  the  meaning  is  to  be  establish- 
ed by  ascertaining  what  the  plaintiff  meant  when  he  wrote  it  in  Brazil. 
The  authority  being  given  in  Brazil,  and  being  written  in  the  -Portu- 
guese -language,  the  intention  of  the  writer  is  to  be  ascertained^  by 
evidence  of  competent  translators  and  experts,  including  if  necessary 
I  Brazilian  lawyers,  as  to  the  meaning  of  the  language  used;  and  XL 
according  to  such  evidence  the  intention  appears  to  be  that  the  author- 
ity shall  be  acted  upon  in  foreign  countries,  it  follows  that  the  extent 
of  the  authority  in  any  country  in  which  the  authority  is  to  be  acted 
upon  is  to  be  taken  to  be  according  to  the  law  of  the  particular  country 
where  it  is  acted  upon. 

Now,  that  I  consider  to  be  a  mere  expansion  of  the  judgment  of 
Day,  J.  It  is  the  same  judgment,  but  it  is  in  an  expanded  form. 
His  judgment,  therefore,  is  not  altered,  but  is  held  to  be  a  correct  judg- 
ment, although  we  express  it  in  an  expanded  form.  It  follows  that 
the  appeal  fails,  and  must  be  dismissed.*^ 

*e  Compare  Baldwin  v.  Gray,  4  Mart.  (N.  S.)  192,  16  Am.  Dec.  169  (1826). 


Ch.  2)  OBLIGATIONS.  413 

ST.  NICHOLAS  BANK  OF  NEW  YORK  v.  STATE  NAT. 

BANK. 

(Court  of  Appeals  of  New  York,  1891.     128  N.  Y.  26,  27  N.  E.  849,  13  L.  R.  A. 

241.) 

This  action  was  brought  to  recover  the  proceeds  of  a  draft  for 
$473.57  sent  for  collection  by  the  plaintiff  to  the  defendant,  and  paid 
to  the  defendant's  correspondents.  The  trial  resulted  in  the  direction 
of  a  verdict  for  the  plaintiff  for  the  amount  demanded.  Upon  appeal 
to  the  General  Term,  the  judgment  entered  upon  the  verdict  was  re- 
versed, and  a  new  trial  ordered.  From  the  order  of  reversal  the  plain- 
tiff appealed  to  this  court.  There  is  no  controversy  as  to  the  facts, 
which  for  the  most  part  were  set  forth  in  a  stipulation  read  upon  the 
trial.  They  may  be  summarized  as  follows :  The  plaintiff  is  a  cor- 
poration organized  under  the  laws  of  the  state  of  New  York,  and 
engaged  in  the  business  of  banking  in  the  city  of  New  York ;  and 
the  defendant  is  a  corporation  organized  under  the  national  banking 
act,  and  doing  business  in  the  city  of  Memphis.  For  two  years  prior 
to  the  18th  day  of  November,  1884,  the  plaintiff  had  been  accustomed 
to  send  checks,  notes,  and  drafts  to  the  defendant  for  collection,  in- 
cluding such  as  were  drawn  upon  persons  residing  at  a  distance,  in 
the  state  of  Texas  and  elsewhere.  The  commercial  paper  was  inclosed 
in  letters,  consisting  of  printed  forms,  filled  out  by  the  insertion  in 
writing  of  the  date,  the  name  of  the  defendant's  cashier,  and  a  descrip- 
tion of  the  inclosure.  The  checks  and  drafts  were  collected  by  the  de- 
fendant, and  the  proceeds  were  remitted  to  the  plaintiff,  less  one-fourth 
of  1  per  cent.,  the  defendant's  commission,  and  the  expense  incurred  in 
making  distant  collections.  On  November  10,  1884,  the  plaintiff  was 
the  owner  and  holder  of  a  check  for  $473.57  dated  November  6,  1884, 
drawn  upon  the  City  National  Bank  of  Dallas,  Tex.,  by  A.  D. 
Aldridge  &  Co.,  and  payable  to  the  order  of  Henry  Levy  &  Son.  This 
check- was  indorsed  by  the  plaintiff  to  the  defendant  for  collection, 
and  was  sent  to  the  latter  in  the  usual  course  of  business.  The  defend- 
ant received  the  check  on  November  13,  1884,  and  on  that  day  indors- 
ed it  for  collection,  and  forwarded  it  by  mail  to  the  firm  of  Adams  & 
Leonard,  at  Dallas,  Tex,  They  were  at  the  time,  and  had  been  for 
many  years,  bankers  in  good  standing  at  Dallas,  and  the  correspond- 
ents of  the  defendant.  They  received  the  check  on  November  17,  1884, 
and  on  that  day  duly  presented  it  for  payment  to  the  bank  upon  which 
it  was  drawn,  and  it  was  immediately  paid,  and  the  proceeds  were 
received  by  them.  They  then  remitted  to  the  defendant  a  sight  draft 
for  the  amount  collected,  drawn  by  them  upon  Jemison  &  Co.,  of  the 
city  of  New  York.  This  draft  was  sent  by  the  defendant  for  collection 
to  the  First  National  Bank  of  New  York,  and  on  November  24,  1884, 
was  presented  to  Jemison  &  Co.,  who,  in  the  mean  time,  had  suspended 
payment.     The  draft  was  accordingly  protested,  and  returned  to  the 


414  PARTICULAR  SUBJECTS.  (Part  2 

defendant.  Thereupon  the  defendant,  on  November  28,  1884,  mailed 
the  protested  draft  to  the  plaintiff,  and  the  plaintiff  refused  to  accept 
it.  Adams  &  Leonard  had  failed  in  business  before  the  draft  on  Jemi- 
son  &  Co.  was  presented  for  payment.  The  only  evidence  offered  by 
the  defendant  in  opposition  to  these  facts  was  proof  of  a  decision  of 
the  Supreme  Court  of  Tennessee,  in  the  case  of  Bank  of  Louisville  v. 
First  Nat.  Bank  of  Knoxville,  8  Baxt.  (Tenn.)  101,  35  Am.  Rep.  691, 
which  is  referred  to  in  the  opinion. 

Earl,  J.'*'^  *  *  *  But  it  cannot  be  maintained  that  the  contract 
between  these  parties  was  a  Tennessee  contract.  It  is  by  no  means  clear, 
even,  that  it  can  be  held  that  the  contract  was  made  there.  It  does 
not  certainly  appear  where  it  was  made.  It  cannot  be  said  that  a  new 
contract  was  made  every  time  a  piece  of  paper  was  sent  by  the  plaintiff 
to  the  defendant  for  collection.  There  was  a  general  contract  between 
the  parties,  which  was  either  created  by  some  negotiation,  or  which 
grew  out  of  the  course  of  business  between  them,  that  the  defendant 
should  collect  the  paper  sent  to  it  for  the  compensation  to  be  allowed. 
If  that  contract  was  made  by  correspondence,  the  plaintiff  making  a 
proposition  by  mail,  and  the  defendant  accepting  it  by  mail,  then, 
when  the  acceptance  was  put  in  the  mail  at  Memphis,  the  contract  was 
complete,  and  had  its  inception  there.  If  the  proposition  came  from 
the  defendant,  and  was  accepted  in  the  same  way  in  New  York,  then 
it  would  have  to  be  treated  as  made  in  New  York.  In  the  absence  of 
more  groofjthan  we  hjave  here,  it  cannot  be  assumed  that  this  contracf 
was  made  in-^  Tennessee.  Nor  is  this  to  be  regarded  as  a  Tennessee 
contract,  for  the  reason  that  it  was  to  be  performed  there,  so  that  the 
defendant  can  claim  that  its  obligations  and  interpretation  are  to  be 
governed  by  Tennessee  law.  We  cannot  perceive  how  any  substan- 
tial part  of  the  contract  was  to  be  performed  in  Tennessee.  The  de- 
fendant was  to  collect  this  draft  in  Texas,  and  pay  its  proceeds,  less 
its  compensation,  to  the  plaintiff  in  New  York,  and  so  the  contract 
was  to  be  performed  in  Texas  and  New  York.  Adams  &  Leonard 
collected  the  draft  for  the  defendant  in  Texas,  and  sent  it  their  own 
draft  on  Jemison  &  Co.  This  draft  the  defendant  sent  to  the  First 
National  Bank  of  New  York  for  collection  and  credit.  If  the  draft 
had  been  paid,  then  the  defendant  would  have  had  credit  for  the 
amount  with  that  bank,  and  would  probably  have  sent  its  own  draft 
on  that  bank  to  the  plaintiff  for  the  amount  of  the  collected  draft,  less 
its,  compensation,  and  that  bank  would  have  paid  that  draft  on  presenta- 
tion, and  thus  the  proceeds  of  the  collected  draft  would  finally  have 
reached  the  plaintiff,  and  the  obligation  of  the  defendant  would  then, 

47  In  the  omitted  portion  of  tlie  opinion  it  was  held  (1)  that,  under  the  law 
of  New  York,  a  bank  receiving  commercial  paper  for  collection,  in  the  absence 
of  a  special  agreement,  is  liable  for  a  loss  occasioned  by  the  default  of  Its  cor- 
respondents ;  (2)  that,  if  the  contract  was  to  be  deemed  a  Tennessee  contract, 
in  which  state  a  different  rule  obtained,  the  New  York  courts  would  follow 
their  own  precedents  in  the  expounding  of  the  general  common  law  applicable 
to  commercial  transactions. 


Ch.    2)  OBLIGATIONS.  415 

and  not  until  then,  have  been  fully  discharged.  So^jilways,  the  defend- 
ant having  collected  a  draft  sent  to  it  by  the  plaintiff,  and  received  the 
proceeds  thereot;'~wourd,  in  the  ordinary  course  of  business,  discharge 
its  obligation  to  the  plaintiff  by  payment  through  its  corresponding 
bank  in  New  York.  Therefore  we  think  it  is  quite  clear  that  this 
contract  cannot,  in  any  view,  be  treated  as  a  Tennessee  contract,  sub- 
ject in  any  way  to  the  law  of  that  state.  Our  conclusion,  therefore,  is 
that  the  order  of  the  General  Term  should  be  reversed,  and  the  judg- 
ment entered  upon  the  verdict  affirmed,  with  costs.    All  concur,* 


(B)  Guaranty  and  Suretyship, 
TENANT  v.  TENANT. 

(Supreme  Court  of  Pennsylvania,  1885.     110  Pa.  478,  1  Atl.  532.) 

Green,  J.'*^  The  contract  in  suit  in  this  case  was  in  form  a  promis- 
sory note  under  seal  for  the  payment  of  $130.52,  dated  October  26, 
1869,  payable  nine  months  from  date.  No  place  of  payment  is  desig- 
nated in  the  instrument;  but  it  was  given  to  A.'W.  Tenant,  admini- 
strator of  William  Tenant,  deceased,  who  was  a  resident  of  West  Vir- 
ginia at  the  time  of  his  death,  and  the  administrator  was  and  is  also 
a  resident  of  the  same  state.  The  note  was  given  in  payment  of  cer- 
tain articles  purchased  at  administrator's  sale  held  in  West  Virginia 
soon  after  the  intestate's  death,  and  was  delivered  "tcT'the  payee  in  that 
state.  Two  sureties^jpniedjnthe  note,  one  of  whom  lived  in  West  Vir- 
'gima  and  the  other  in  Pennsylvania ;  and  it  Ts  against  these  the  present 
5uitJs_brought.  Of  course,  the  note  being  payable  at  the  residence  of 
the  payee,  and  having  been  delivered  there  for  goods  sold  there,  must 
be  deemed  and  taken  to  be  a  West  Virginia  contract. 

*CoNTiNENTAi,  LAW. — The  powers  of  an  agent  appointed  for  a  particular 
territory  has  been  held  to  be  governed,  with  respect  to  third  parties,  by  the 
law  aud  usages  of  such  country.    R.  G.  Dec.  5,  1896  (7  Niemeyer,  341). 

The  right  of  a  partner  to  represent  the  firm  is  determined  by  the  law  of  the 
place  where  the  partnership  is  constituted.  R.  O.  H.  G.  Feb.  17,  1871  (20 
Seuffert's  Archiv,  163). 

So  the  powers  of  the  administrator  of  a  foreign  corporation  depend  upon  the 
law  of  the  state  where  such  authority  was  conferred.  App.  Lyon,  May  8, 
1907  (35  Clunet,  173). 

The  rights  of  a  commission  merchant  seem  to  be  governed  by  the  law  of  the 
place  where  he  carries  on  his  business.  R.  G.  Dec.  16,  1885  (14  Clunet,  84) ;  O. 
L.  G.  Colmar,  March  27,  1896  (S.  1898.  4,  9),  and  note. 

The  authority  of  the  master  of  a  vessel  to  bind  the  owners  by  contract  has 
been  held  to  depend  upon  the  law  of  the  place  where  the  mandate  was  given. 
App.  Douai,  Dec.  5,  1901  (19  Autran,  180) ;  appeal  rejected  in  Cass.  July  27, 
1903  (19  Autran,  178).  In  favor  of  law  of  the  flag.'  App.  Rennes,  Dec.  21,  1887 
(3  Autran,  675) ;  Trib.  Com.  Marseilles,  Dec.  21,  1900  (10  Autran,  809). 

In  the  interest  of  commercial  security,  German  courts  will  apply  their  own 
law  with  respect  to  the  authority  of  the  master  of  a  foreign  vessel  issuing 
bills  of  lading  for  goods  to  be  delivered  in  Germany.    34  R.  G.  72  (May  2,  1894). 

*8  A  part  of  the  opinion  only  is  given. 


416  PARTICULAR  SUBJECTS.  (Part  2 

This  contract  was  made  and  was  to  be  performed  in  that  state,  and 
henc'e  the  law  of  that  state  must  govern  in  determining  its  validity,  ob- 
ligation, and  construction.  The  only  question  in  the  case  is  whether  the 
defense  set  up  by  the  sureties  must  be  determined  by  the  law  of  West 
Virginia  or  the  law  of  Pennsylvania.  The  defense  is  that  the  sureties 
gave  notice  to  the  creditor  that  he  must  proceed  against  the  principal 
for  the  collection  of  the  note,  or  they  would  no  longer  be  responsible. 
By  the  law  of  West  Virginia  such  a  notice,  to  be  effective,  must  be  in 
writing.  In  this  case  it  was  verbal  only,  and  therefore,  if  judged  by 
the  law  of  West  Virginia,  it  was  nugatory. 

It  is  argued  for  the  defendants  that  this  right  of  relief  to  a  surety  is  a 
matter  relating  to  the  remedy,  and  must,  therefore,  be  determined  by 
the  lex  fori.  But  we  do  not  think  this  position  tenable.  The  right  of  a 
surety  to  discharge  his  obligation  by  notice  to  the  creditor  to  pursue 
the  debtor  is  an  incident  of  the  contract  of  suretyship.  It  is  a  part  of 
the  law  of  that  contract,  and  is,  therefore,  a  part  of  the  contract  itself. 
It  is  a  qualification  of  the  obligation  of  the  contract,  reducing  it  from  a 
peremptory  and  absolute  obligation  to  one  of  a  qualified  or  conditional 
character.  It  is  true  the  surety  may  not  exercise  his  right,  and  if  he 
does  not,  his  obligation  remains  intact.  But,  on  the  other  hand,  he  may 
exercise  it,  and  if  he  does,  and  the  creditor  pays  no  heed  to  the  notice, 
and  thereby  fails  to  recover  from  the  principal  debtor,  the  very  root 
of  the  surety's  obligation  is  reached  and  destroyed ;  he  is  no  longer  lia- 
ble; it  is  as  though  he  had  never  contracted.  Very  different  is  this 
from  thejiefense  of  the  statute  of  limitations.  There,  the  obligation  of 
the  contract  is  not  terminated  or  defeated.  Only  a  right  to  enforce  it 
by  an  action  in  the  courts  is  imperiled.  The  state  simply  declares  that 
if  her  process  is  used  it  must  be  done  within  certain  fixed  periods  of 
time,  and  if  not  so  used  the  defendant  may,  at  his  option,  plead  the 
laches  of  the  plaintiff,  and  receive  the  benefit  of  the  prohibition.  It  is 
in  substance  a  prohibition  upon  the  use  of  process  after  a  defined  period, 
and  this,  of  course,  makes  it  matter  of  remedy  only.  For  these  rea- 
sons we  think- it  quite  clear  that  the  right  of  a  surety  to  discharge  his 
obligation  by  a  disregarded  notice  to  the  creditor  to  pursue  the  prin- 
cipal debtor,  is  a  matter  affecting  the  obligation  of  the  contract,  and 
must,  therefore,  be  determined  by  the  law  of  the  place  of  the  contract. 
The  notice  given  in  this  case  was  verbal  only,  and  therefore  of  no  effect 
by  the  law  of  West  Virginia,  and  hence  unavailing  here.     *     *     *  49 

4  0  So  whether  the  defense  of  usury  will  lie  will  depend  upon  the  law  ap- 
plicable to  the  contract  of  the  principal.  Pugh  v.  Cameron's  Adm'r,  11  W.  Va. 
523  (1877) ;  Brownell  v.  Freese,  35  N.  J.  Law,  285,  10  Am.  Rep.  239  (1871). 


Ch.    2)  OBLIGATIONS.  417 

cox  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1S32.    6  Pet.  172,  8  L.  Ed.  359.) 

Error  to  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Louisiana. 

This  action  was  brought  by  the  district  attorney  of  the  United 
States  against  John  Dick,  deceased,  and  Nathaniel  Cox,  residents  of 
New  Orleans,  as  sureties  on  the  official  bond  of  Joseph  H.  Hawkins, 
late  of  New  Orleans,  navy  agent  of  the  United  States.  The  bond  was 
executed  by  Hawkins  and  his  sureties  at  New  Orleans.  Hawkins  died 
without  having  accounted  for  $15,555.18  which  he  had  received  in  his 
official  capacity.  The  jury  returned  a  verdict  for  $20,000,  being  the 
amount  of  the  penalty  in  the  bond.  Upon  this  a  judgment  was  enter- 
ed against  the  estate  of  John  Dick  and  Nathaniel  Cox,  jointly  and 
severally,  for  $20,000,  and  a  judgment  against  Nathaniel  Dick  and 
James  Dick,  the  legal  representatives  of  John  Dick,  for  $10,000  each.^*' 

Thompson,  J.^^  *  *  *  Upon  no  possible  ground  can  this  judg- 
ment be  sustained. 

There  are,  however,  one  or  two  questions  arising  upon  this  record 
which  have  been  supposed  at  the  bar  to  have  a  more  general  bearing, 
which  it  may  be  proper  briefly  to  notice.     *     *     * 

It  was  contended  on  the  part  of  the  plaintiffs  in  error,  that  the 
United  States  were  bound  to  divide  their  action,  and  take  judgment 
against  each  surety  only,  for  his  proportion  of  the  sum  due,  accord- 
ing to  the  law  of  Louisiana ;  considering  it  a  contract  made  there,  and 
to  be  governed  in  this  respect  by  the  law  of  the  state.  On  the  part  of 
the  United  States,  it  is  claimed,  that  the  liability  of  the  sureties  must 
be  governed  by  the  rules  of  the  common  law;  and  the  bond  being 
joint  and  several,  each  is  bound  for  the  whole;  and  that  the  contribu- 
tion between  the  co-sureties  is  a  matter  with  which  the  United  States 
have  no  concern.  The  general  rule  on  this  subject  is  well  settled; 
that  the  law  of  the  place  where  the  contract  is  made,  and  not  where 
the  action  is  brought,  is  to  govern  in  expounding  and  enforcing  the 
contract,  imless  the  parties  have  a  view  to  its  being  executed  elsewhere ; 
in  which  case  it  is  to  be  governed  according  to  the  law  of  the  place 
where  it  is  to  be  executed.  Robinson  v.  Bland,  2  Burr.  1077 ;  Hunter 
V.  Potts,  4  T.  R.  182 ;  Alves  v.  Hodgson,  7  T.  R.  242 ;  Smith  v.  Smith, 
2  Johns.  (N.  Y.)  241,  3  Am.  Dec.  410;  Thompson  v.  Ketcham,  4 
Johns.  (N.  Y.)  285.  There  is  nothing  appearing  on  the  face  of  this 
bond,  indicating  the  place  of  its  execution,  nor  is  there  any  evidence 
in  the  case,  showing  that  fact.  In  the  absence  of  all  proof  on  that 
point,  it  being  an  official  bond,  taken  in  pursuance  of  an  act  of  con- 
so  This  short  statement  of  facts  has  been  substituted  for  that  of  the  original 
report. 

51  A  part  of  the  opinion  has  been  omitted. 

LoE.CoNF.L.— 27 


il8  PARTICULAR  SUBJECTS.  (Part  2 

gress,  it  might  well  be  assumed  as  having  been  executed  at  the  seat 
of  government.  But  it  is  most  likely  that,  in  point  of  fact,  for  the 
convenience  of  parties,  the  bond  was  executed  at  New  Orleans,  par- 
ticularly, as  the  sufficiency  of  the  sureties  is  approved  by  the  district 
attorney  of  Louisiana. 

But  admitting  the  bond  to  have  been  signed  at  New  Orleans,  it  is 
very  clear,  that  the  obligations  imposed  upon  the  parties  thereby  looked 
for  its  execution  to  the  city  of  Washington.  It  is  immaterial  where 
the  services  as  navy  agent  were  to  be  performed  by  Hawkins.  His 
accountability  for  nonperformance  was  to  be  at  the  seat  of  govern- 
ment. He  was  bound  to  account,  and  the  sureties  undertook  that  he 
should  account  for  all  public  moneys  received  by  him,  with  such  offi- 
cers of  the  government  of  the  United  States  as  are  duly  authorized  to 
settle  and  adjust  his  accounts.  The  bond  is  given  with  reference  to 
the  laws  of  the  United  States  on  that  subject.  And  such  accounting 
is  required  to  be  with  the  Treasury  Department,  at  the  seat  of  gov- 
ernment; and  the  navy  agent  is  bound,  by  the  very  terms  of  the 
bond,  to  pay  over  such  sum  as  may  be  found  due  to  the  United  States, 
on  such  settlement;  and  such  paying  over  must  be  to  the  Treasury 
Department,  or  in  such  manner  as  shall  be  directed  by  the  Secretary. 
V  The  bond^  is,  therefore,  in  every  point  of  view  in  which  it  can  be  con- 

-^  I    sidered,  a  contract  to  be  executed  at  the  city  of  Washington ;   and  the 

liability  of  the  parties  must  be  governed  by  the  rules  of  the  common 
law. 

The  judgment  of  the  court  below  is  reversed;    and  the  cause  sent 
back,  with  directions  to  issue  a  venire  de  novo.^^ 
/ 


MILLIKEN   V.   PRATT. 

/"Supreme  Judicial  Court  of  Massacbusetts,  1878.    125  Mass.  374,  28  Am.  Rep. 

241.) 

Action  against  Sarah  A,  Pratt,  wife  of  Daniel  Pratt  and  resident  of 
the  state  of  Massachusetts,  upon  a  contract  of  guaranty  signed  by  her 
in  Massachusetts  and  sent  by  mail  to  the  plaintiffs,  Deering,  Milliken 
&  Co.,  at  Portland,  Me.^» 

5  2  See  in  general  20  Cyc.  1442;  Wliarton,  Conflict  of  Laws,  §  427s. 

Continental  Law.— In  Germany  it  is  held  that  the  extent  of  the  surety's 
liability  is  subject  to  the  law  governing  the  principal  obligation,  but  whether 
the  surety  is  liable  at  all  depends  upon  the  law  of  the  place  of  performance 
of  the  contract  of  suretyship,  which  need  not  coincide  with  that  of  the  prin- 
cipal contract.    R.  G.  April  23,  1003  (13  Niemeyer,  423). 

Whether  the  creditor  can  proceed  against  the  surety  without  previous  suit 
against  the  principal  Is  governed  by  the  law  applicable  to  the  contract  of  sure- 
tyship, and  not  by  the  lex  fori.    9  R.  G.  185  (May  23,  1883). 

c3  This  brief  statement  of  facts  has  been  substituted  for  that  of  the  original 
report. 


Ch.  2) 


OBLIGATIONS. 


419 


Gray,  C.  J."*  The  general  rule  is  that  the  validity  of  a  contract  is 
to  be  determined  by  the  law  of  the  state  in  which  it  is  made ;  if  it  is 
valid  there,  it  is  deemed  valid  everywhere,  and  will  sustain  an  action 
in  the  courts  of  a  state  whose  laws  do  not  permit  such  a  contract. 
Scudder  v.  Union  Nat.  Bank,  91  U.  S.  406,  23  L.  Ed.  245.  Even  a 
contract  expressly  prohibited  by  the  statutes  of  the  state  in  which  the 
suit  is  brought,  if  not  in  itself  immoral,  is  not  necessarily  nor  usually 
deemed  so  invalid  that  the  comity  of  the  state,  as  administered  by  its 
courts,  will  refuse  to  entertain  an  action  on  such  a  centract  made  by 
one  of  its  own  citizens  abroad  in  a  state  the  laws  of  which  permit  it. 
Greenwood  v.  Curtis,  6  Mass.  358,  4  Am.  Dec.  145.  Mclntyre  v. 
Parks,  3  Mete.  207. 

If  the  contract  is  completed  in  another  state,  it  makes  no  difference 
in  principle  whether  the  citizen  of  this  state  goes  in  person  or  sends 
an  agent,  or  writes  a  letter,  across  the  boundar>j  Hne  between  the 
two  states.  As  was  said  by  Lord  Lyndhurst:  "If  I,  residing  in  Eng- 
land, send  down  my  agent,  to  Scotland,  and  he  makes  contracts  for 
me  there,  it  is  the  same  as  if  I  myself  went  there  and  made  them." 
Pattison  v.  Mills,  1  Dow.  &  CI.  342,  363.     So  if  a  person  residingUn 

this   state    <;ioTi^^nf1    trpnAmrt^^-^'tVipr   Ky    a    mpgc;pTqo-pr    nr   fhrnugh    the 

post  office,  to  a  person  in  another--r,j-,->.te,.  n  wriiteyi  rnntrart.  which  re- 
quires  no  special  longg"^  solemnitiesJriJts  execiiJ:inn,  ar[(WHl_S2£Zl^ 
ture  of  the  person  to  \yhom_it  js_addressed.  and  is  assented  to  and 
acted  on  by  him,  tlierfi^he  contract  is  made  there,  just  as  if  the 
writer  persotrally'took  the  executed  contract  intoj-he  other  state,  or 
wrote  and  signed  iri][^e£e;  and  it  is  no  ohjection  to  t_he_niaintenan££ 
of  an  artinn  fherenn^jTere^jhVmt  such;XlY)ntrajc±-is-prnhibited  by  the  law 
of  this  commonw^th.     Mclntyre  v.  Parks,  above  cited. 

The  guaranty,  bearing  date  of  Portland,  in  the  state  of  Maine,  was 
executed  by  the  defendant,  a  married  woman,  having  her  home  in  this 
commonwealth,  as  collateral  security  for  the  liability  of  her  husband 
for  goods  sold  by  the  plaintiffs  to  him,  and  was  sent  by  her  through 
him  by  mail  to  the  plaintiffs  at  Portland.  The  sales  of  the  goods  or- 
dered by  him  from  the  plaintiffs  at  Portland,  and  there  delivered  by 
them  to  him  in  person,  or  to  a  carrier  for  him,  were  made  in  the  state 
of  Maine.  Orcutt  v.  Nelson,  1  Gray,  536 ;  Kline  v.  Baker,  99  Mass. 
253.  The  contract  between  the  defendant  and  the  plaintiffs  was  com- 
plete when  the  guaranty  had  been  received  and  acted  on  by  thera  at 
Portland7  and  not  before,  Jordan  v.  Dobbins,  122  Mass.  168.  It 
must  fHerefore  be  treated  as  made  and  to  be  performed  in  the  state  o± 
Maine. 

The  law  of  Maine  authorized  a  married  woman  to  bind  herself 
by  any  contract  as  if  she  were  unmarried.  Pub.  Laws  Me.  1866,  p.  31, 
c.  52;   Mayo  v.  Hutchinson,  57  Me.  546.    The  law  of  Massachusetts, 


54  Only  so  much  of  the  opinion  as  relates  to  the  situs  of  the  wntract  Oi*" 
guaranty  is  given. 


420  PARTICULAR  SUBJECTS.  (Part  2 

as  then  existing-,  did  not  allow  her  to  enter  into  a  contract  as  surety 
or  for  the  accommodation  of  her  husband  or  of  any  third  person.  Gen. 
St.  1860,  c.  108,  §  3 ;  Nourse  v.  Henshaw,  123  Mass.  96.  Since  the 
making  of  the  contract  sued  on,  and  before  the  bringing  of  this  ac- 
tion, the  law  of  this  commonwealth  has  been  changed,  so  as  to  enable 
married  women  to  make  such  contracts.  St.  1874,  p.  117,  c.  184; 
Major  V.  Holmes,  124  Mass.  108;  Kenworthy  v.  Sawyer,  125  Mass.  28. 

The  question  therefore  is,  whether  a  contract  made  in  another  state 
by  a  married  woman  domiciled  here,  which  a  married  woman  was 
not  at  the  time  capable  of  making  under  the  law  of  this  commonwealth, 
but  was  then  allowed  by  the  law  of  that  state  to  make,  and  which  she 
could  not  lawfully  make  in  this  commonwealth,  will  sustain  an  action 
against  her  in  our  courts.     *     *     * 

Judgment  for  the  plaintiffs. 


(C)  Bills  and  Notes. 

MONTANA   COAL  &   COKE   CO.   v.   CINCINNATI   COAL  & 

COKE  CO. 

(Supreme  Court  of  Ohio,  1904.     69  Ohio  St.  351,  69  N.  E.  613.) 

See  ante,  p.  341,  for  a  report  of  the  case.^' 

5  5  With  regard  to  bills  and  notes,  see,  in  general,  121  Am.  St.  Rep.  870^879; 
61  L.  R.  A.  193-226. 

To  the  effect  that  the  law  of  the  place  of  payment  will  determine  the 
negotiability  of  the  instrument  with  respect  to  the  maker,  see  Freeman's  Bank 
V.  Ruckman,  16  Grat.  (Va.)  126  (1860);  Stevens  v.  Gregg,  89  Ky.  461,  12  S. 
W.  775  (1890) ;  Barger  v.  Farnham,  130  Mich.  487,  90  N.  W.  281  (1902) ;  Straw- 
berry Point  Bank  v.  Lee,  117  Mich.  122,  75  N.  W.  444  (1898),  semble.  Contra, 
and  in  favor  of  the  law  of  the  place  of  making,  Howeustein  v.  Barnes,  5  Dill. 
(U.  S.)  482,  Fed.  Cas.  No.  6,786  (1879).  The  law  of  the  place  of  payment  has 
been  held  to  determine  whether  equitable  defenses  can  be  set  up  by  the  maker 
of  a  note,  Brabston  v.  Gibson,  9  How.  (U.  S.)  203,  13  L.  Ed.  131  (1850),  sem- 
ble ;  whether  the  joint  maker  of  a  note  is  entitled  to  notice,  Phipps  v.  Hard- 
ing, 70  Fed.  468,  17  C.  C.  A.  203,  30  L.  R.  A.  513  (1895),  semble;  and  the 
amount  of  recovery  as  against  the  maker  of  a  note  or  the  acceptor  of  a  bill, 
Scofleld  V.  Day,  20  Johns.  (N.  T.)  102  (1822).  Stipulations  for  attorney's  fees 
and  costs  of  collection  have  been  disallowed  on  the  ground  of  public  policy, 
being  deemed  to  pertain  to  the  remedy,  or  on  the  ground  that  they  are  penal. 
Commercial  Nat.  Bank  v.  Davidson,  18  Or.  57,  22  Pac.  517  (1889) ;  Security 
Co.  V.  Eyer,  36  Neb.  507,  54  N.  W.  838,  38  Am.  St.  Rep.  735  (1893) ;  Arden 
Lumber  Co.  v.  Henderson  Iron  Works  &  Supply  Co.,  83  Ark.  240,  103  S.  W. 
185  (1907). 

The  maker's  or  acceptor's  liability  upon  a  negotiable  instrument,  so  far  as 
it  is  dependent  upon  the  negotiable  or  nounegotiable  Character  of  the  instru- 
ment, is  not  affected  by  the  fact  that  it  is  negotiated  in  a  jurisdiction  where  a 
different  law  prevails.    Ory  v.  Winter,  4  Mart.  (N.  S.)  277  (1826). 

The  Place  of  Making. — ^A  bill  or  note  is  deemed  executed  in  the  place 
whore  it  is  delivered.  Hart  v.  Wills,  52  Iowa,  56,  2  N.  W.  619,  35  Am.  Rep. 
255  (1879) ;  Wells,  Fargo  &  Co.  v.  Vansickle  (C.  C.)  64  Fed.  944  (1894).  This 
rule  applies  to  each  contract  contained  upon  such  bill  or  note.  Young  v. 
Harris  (1854)  53  Ky.  556,   01   Am.   Dec.  170  (indorsement) ;  Tilden  v.   Blair 


i 


Ch.   2)  OBLIGATIONS.  421 

EMBIRICOS  V.  ANGLO-AUSTRIAN  BANK. 

(Ck)urt  of  Appeal,  1905.    1  K.  B.  Div.  677,  74  L.  J.  K.  B.  326.) 

Appeal  from  the  decision  of  Walton,  J.       [1904]   2  K.  B.  870. 

The  action  was  brought  by  Messrs.  L.  &  M.  Embiricos  against  the 
Anglo-Austrian  Bank  to  recover  damages  for  the  wrongful  conver- 
sion of  a  cheque.  On  March  6,  1903,  a  Roumanian  bank  drew  a 
cheque  at  Braila,  in  Roumania,  on  a  London  bank  payable  to  the 
plaintiffs  or  order.  The  same  day  the  plaintiffs  at  Braila  specially 
indorsed  the  cheque  to  G.  Embiricos  &  Co.,  a  London  firm,  and  wrote 
to  them  a  letter  which,  with  the  cheque,  the  plaintiffs  placed  in  an 
envelope  addressed  to  G.  Embiricos  .&  Co.  in  London.  The  cheque 
was  stolen  from  the  envelope  by  a  clerk  of  the  plaintiffs.  On  March 
9,  1903,  the  cheque  was  presented  at  the  bank  of  Messrs.  Schelham- 
mer  &  Schatterer,  in  Vienna,  by  a  person  who  desired  that  it  might 
be  cashed.  It  then  bore  the  indorsement  G.  Embiricos  &  Co.,  in  ad- 
dition to  the  special  indorsement  to  that  firm  by  the  plaintiffs.  The 
indorsements  were  apparently  regular  and  in  order,  but  that  of  G. 
Embiricos  &  Co.  was  in  fact  a  forgery,  though  Messrs.  Schelham- 
mer  &  Schatterer  -were  ignorant  of  the   forgery.     They   telegraph- 

(1874)  21  Wall.  (U.  S.)  241,  22  L.  Ed.  632  (acceptance);  Briggs  v.  Latham 
(1887),  36  Kans.  2.5.5,  13  Pac.  393,  59  Am.  Rep.  546  (indorsement).  If  sent 
by  mall  it  will  be  the  place  where  the  instrument  is  received  by  the  payee. 
McGarry  v.  Nicklin,  110  Ala.  559,  17  South.  726,  55  Am.  St.  Rep.  40  (1890) ; 
Phipps  V.  Harding,  70  Fed.  468,  17  C.  C.  A.  203.  30  L.  R.  A.  513  (1895) ;  Nashua 
Sav.  Bank  v.  Sayles,  184  Mass.  520,  69  N.  E.  309,  100  Am.  St.  Rep.  573  (1904). 
Unless  the  payee  has  in  advance  agreed  to  the  terms  of  the  instrument,  in 
which  event  the  place  of  delivery  will  be  the  place  where  the  instrument  is 
mailed.  Barrett  v.  Dodge,  16  R.  I.  740,  19  Atl.  530,  27  Am.  St.  Rep.  777 
(1890);  Garrigue  v.  Kellar,  1&4  Ind.  676,  74  N.  E.  .523,  69  L.  R.  A.  870.  108 
Am.  St.  Rep.  324  (1905).  In  the  absence  of  evidence  to  the  contrary,  a 
negotiable  instrument  will  be  presumed  to  have  been  executed  at  the  place 
indicated  by  its  date.  Lennig  v.  Ralston,  23  Pa.  137  (18.54) ;  Second  Nat.  Bank 
V.  Smoot,  2  MacArthur  (D.  C.)  371  (1876) ;  Parks  v.  Evans,  5  Houst.  (Del.)  576 
(1879).  As  to  a  holder  in  due  course  there  is  a  conclusive  presumption  to 
this  effect.  Towne  v.  Rice.  122  Mass.  67  (1877) ;  Quaker  City  Nat.  Bank  v. 
Showacre.  26  W.  Va.  48  (1885) ;  Chemical  Nat.  Bank  v.  Kellogg,  183  N.  Y.  92, 
75  N.  E.  1103,  2  L.  R.  A.  (N.  S.)  299.  Ill  Am.  St.  Rep.  717  (1905). 

Accommodation  paper  is  regarded  as  made  in  the  state  where  it  is  first  de- 
livered for  value.  Tilden  v.  Blair.  21  Wall.  241.  22  L.  Ed.  632  (1874) ;  Gay 
V.  Rainey,  89  111.  221,  31  Am.  Rep.  76  (1878);  Young  v.  Harris,  14  B.  Mon. 
(Ky.)  556,  61  Am.  Dec.  170  (1854) ;  Davis  v.  Clemson,  Fed.  Cas.  No.  3,630 
(1855). 

Continental  Law. — a.  Form. — The  law  of  the  place  where  the  instrument 
is  executed  governs.  Article  85,  German  Bills  of  Exchange  Act.  The  law  of 
the  place  of  performance  is  of  no  importance  in  this  regard.  6  R.  O.  H.  G. 
125  (May  11,  1872). 

b.  Obligation  and  Effect. — The  general  rule  as  to  contracts  prevails.  In 
France  and  Italy,  therefore,  the  law  of  the  place  of  execution  will,  in  the 
absence  of  evidence  of  a  contrary  intention  or  a  common  nationality,  determine 
the  obligation  and  effect  of  the  maker's  and  acceptor's  contracts.  See  French 
Cass.  Feb.  6,  1900  (S.  1900,  1,  161),  and  note;  article  58.  Italian  Com.  Code. 
While  in  Germany  the  law  of  the  place  of  performance  will  apply.  6  R.  G.  24 
(Jan.  17,  1882). 


422 


PARTICULAR  SUBJECTS. 


(Part  2 


ed  to  the  Roumanian  bank,  and,  having  ascertained  from  them  that 
the  cheque  was  in  order,  they  cashed  it,  and  on  the  same  day  they 
indorsed  it  to  the  defendants  and  posted  it  to  them  in  London,  where 
the  defendants  cashed  it  at  the  bank  on  which  it  was  drawn. 

According  to  an  affidavit  made  as  to  the  Austrian  Jaw_.by..A  doxtpr 
of  law  of  the  University  of  Vienna,  "the  holder  of  a  cheque  which 
he  has  bought  bona  fide  without  gross  negligence  and  for  value  is 
identified  as  the  proprietor  of  the  cheque,  and  entitled  to _the_  proceeds 
thereof  against  all  the  world,  notwithstanding  that  the  cheque  has 
been  previously  stolen,  and  notwithstanding  that  the  indorsement  has 
been  forged." 

Walton,  J.,  gave  judgment  for  the  defendants.  He  held,  upon 
the  authority  of  Alcock  v.  Smith,  [1892]  1  Ch.  238,  that  the  transfer 
of  the  cheque  in  Vienna  was.  governed  by  Austrian  law,  and  gave 
the  Vienna  bank  a  good  title  to  the  cheque,  which  title  they  transfer- 
red to  the  defendants. 

The  plaintiffs  appeal. 

Vaughan  Williams,  L.  ].^^  Walton,  J.,  decided  the  case  in  fa- 
vour of  the  d'^fendants  on  the  ground  that,  by  the  transfer  of  the 
cheque  to  the  Vienna  bank,  a  good  title  to  the  cheque,  which  the  Eng- 
lish court  was  bound  to  recognize,  passed  to  the  Vienna  bank,  and 
jv^'that  that  bank  gave  an  equally  good  title  to  the  defendants  who, 
when  they  presented  the  cheque  for  payment  to  the  bank  on  which 
it  was  drawn,  were  dealing  with  their  own  property  and  not  with 
the  plaintiffs'  property.  He  pointed  out  that  the  only  question  in 
this  action  is  between  the  original  payees  and  the  subsequent  hold- 
ers of  the  cheque,  who  derived  their  title  to  the  cheque  through,  an 
indorsement  which  had  been  forged.  And  that,  inasmuch  as  under 
the  English  law  no  title  could  be  made  under  a  forged  indorsement, 
but  under  the  Austrian  law  the  bona  fide  holder  of  a  cheque,  for  which 
he  has  given  value  in  ignorance  of  any  flaw  in  the  title  of  the  trans- 
itrvov,  is  entitled  to  the  cheque,  although  it  has  been  previously  stol- 
en and  the  indorsements  upon  it  have  been  forged,  it  became  nec- 
essanTTo  decide  whether  the  validity  of  the  transfer  of  this  cheque 
ought  to  be  governed  by  Austrian  or  by  English  law.  Walton,  J., 
held  that  the  question  of  the  validity  of  the  transfer  ought  to  be  gov- 
erned by  the  Austrian  law,  first,  because  it  was  decided  by  Romer,  J., 
and  on  appeal  by  the  Court  of  Appeal  in  Alcock^^v^.,.,.§mith,  [1892] 
1  Ch.  238,  that_the  ordinary  rule  as  to  the  transfer  of  chattels  which 
is  thus  stated  in  rule^TiCr^of'^Tcey's^conHicF  of  Laws,  that  ''assign- 
ment of  a  movable  which  can  be  touched  CS2£^£l.  S'iviiig_a_gQQ4  tj- 


tle_thereto  accordingtojTielaw  of  the  country  where  the  movable  is 
situate  at  jhg^isJfi-SOSJI^srgnni^  (Tex^^situsjijsjrali^''  applies  to 
^....biJL^of^exdTange,   and. 


ippTiesto 
strumen^ 


I    suppose,   to   any   negotiable   instrument 
and  Walton,  J.,  also  seemed  to  be  of  opinion  that  his  judgment  could 


c6  The  concurring  opinions  of  Romer  and  Stirling,  L.  J  J.,  have  been  omitted. 


Ch.    2)  OBLIGATIONS.  ^  423 

be  justified  by  the  words  of  section  72  of  the  Bills  of  Exchange  Act, 
1882.  For  the  learned  judge  said  that  if  the  "interpretation"  of  the 
indorsement  means  the  legal  effect  of  the  transfer  by  indorsement, 
it  would  cover  this  case. 

I  think  that  the  view  taken  by  Walton,  J.,  of  the  effect  of  the  de- 
cision in  Alcock  v.  Smith,   [1892]   1  Ch.  238,  that  the  rulethatjjie 


validity  of  the  transfer  of  chattels  must  be  governed  by  the  law  of- 
the  country  in  which  the  transfer  takes  place,  applies  to  a  Ijill  "r  a_^ 
cheque,  and  applies  to  the  transfer  of  bills^  or_cheques  in  cases  where 
me  transfer  is  by  Indorsement,  is  right ;  although  in  the  case~6T~AP 
cock  V.  Srmth,  [1892]  1  Ch.  238,  the" transfer  was  not  by  indorse- 
ment, but  by  process  of  law  in  the  shape  of  a  judicial  arrestment. 
This  conclusion  seems  sufficient  to  negative  the  cause  of  action  in 
the  present  case,  which  is  an  action  by  the  payee  against  an  indorsee, 
who  claims  under  a  forged  indorsement  giving  him  a  good  title  in 
the  country  where  the  indorsement  was  made. 

Butjt  would  jnaiiiiesily_be.  an  unsatisfactory  state  of  the  law  if 
the  legal  result  is  that  the  indorsement  is  effective  to  give  the  indors- 
ee of  a  bill  a  good  title  as  against  the  payee,  but  not  effective  accord- 
ing to  English  law  to  o^ive  that  indorsee  a  good  title  against  the  draw- 
er or_the  acceptor.  And  it  would  be  convenient,  as  well  from  a  legal 
as  from  a  commercial  point  of  view,  that  it  should  be  established  that 
the  title  by  such  an  indorsement  is  good  as  against  the  original  par- 
ties to  a  negotiable  instrument,  having  regard  to  the  contractual  lia- 
bility incurred  by  them  thereby.  I  do  not  think  that  Alcock  v.  Smith, 
[1892]  1  Ch.  238,  decides  this  question;  on  the  contrary,  it  seems  to 
me  that  the  judgments  of  Romer,  J.,  and  the  Court  of  Appeal  both 
disclaim  so  doing;  and,  further,  it  seems  to  me  that  the  law  as  laid 
down  by  Pearson,  J.,  in  In  re  Marseilles,  etc..  Land  Co.,  30  Ch.  D. 
598  and  by  Lush,  J.,  in  Lebel  v.  Tucker,  L.  R.  3  Q.  B.  77,  83  is,  in 
effect,  authority  to  the  contrary.  At  all  events,  it  has  never  been 
decided  that  the  liability  of  an  acceptor  in  England  of  a  bill,  drawn 
abroad  or  of  the  drawer  of  a  cheque  payable  in  England  amounts  to 
a  contract  to  pay  on  a  forged  indorsement  valid  by  the  foreign  law, 
but  invalid  by  the  law  of  England.  It  may,  however,  be  that  the 
contract  of  the  drawer  or  acceptor  is  to^ay~oira!iy' indorsement  rec- 
ognized^^yihelaw  of  England,  even  though  that  indorsement  be 
invalid  according  to  what  I  will  call  for  convenience  the  local  law  of 
England;  :  I  am  disposed  to  think  that  this  is  the  true  contract.  If 
the  contract  of  the  drawer  of  a  cheque  or  acceptor  of  a  bill  were 
limited  to  payment  on  indorsements  valid  by  the  English  local  law 
an  argument  might  be  raised  that,  even  though  the  indorsement  abroad 
was  valid  to  legalize  the  possession  by  the  indorsee  claiming  under 
the  foreign  indorsement,  yet  he  would  be  guilty  of  a  conversion  if 
he  used  a  negotiable  instrument  to  the  possession  of  which  he  was 
entitled  for  the  purpose  of  obtaining  and  did  obtain  payment  from 
an  original  part}-  to  the  negotiable  instrument  from  whom  he  could 


llsSJ^ 


424  PARTICULAR  SUBJECTS.  (Part  2 

nothaye  recovered  J?y  process  of  law.  User  of  a  chattel  by  a  per- 
son entitled  to  possession  in  such  a  manner  would  perhaps  give  a 
rig-ht  of  action  for  money  had  and  received. 

I,  however,  have  come  to  the  conclusion  that  as  between  the  pay- 
ees and  these  indorsees  there  is  no  cause  of  action 'for  conversion, 
and  that  the  judgment  of  Walton,  J.,  must  be  affirmed. 

It  is  to  be  observed  that  our  decision  in  the  present  case  does  not 
increase  the  liability  of  the  bank  upon  which  the  cheque  was  drawn 
and  which  paid  the  cheque.  I  wish  to  add  that  I  am  not  satisfied  that, 
having  regard  to  the  terms  of  subsection  2  of  section  72  of  the  Bills 
of  Exchange  Act,  1882,  that  section  is  conclusive  of  the  present  case, 
and  I  do  not  think  that  section  24  governs  the  case  of  an  indorse- 
ment abroad.  ^^  , 

i  ■  LHBEL  V.  TUCKER. 

.    \  Jy'^   (Queen's  Bench,  1867.    3  Q.  B.  77,  37  L.  J.  Q.  B.  46.) 

Lush,  J.^^  The  action  is  on  a  bill  drawn,  accepted,  and  payable, 
in  England,  and  which  is  therefore  an  inland  bill ;  and  the  action  is 
brought  by  persons  claiming  the  right  to  sue  by  title  derived  from 
the  drawers  and  payees  according  to  the  English  law.  The  defence 
is,  that  the  indorsement  was  made  in  France,  and  is  not  conform- 
able to  the  law  of  France,  which  requires  that  the  indorsement  should 
bear  a  date,  and  express  the  consideration  for  the  indorsement  and  the 
name  of  the  indorsee.  The  question  is,  is  that  any  answer  to  an  ac- 
tion against  the  acceptor  of  an  English  bill?  The  circumstances  are 
somewhat  novel,  but  the  principle  applicable  is  not  novel ;  it  exist- 
ed before,  and  is  well  established  by  the  decision  in  Trimbey  v.  Vig- 
nier,  1  Bing.  N.  C.  151,  viz.,  that  contracts  must  be  governed  by 
the  law  of  the  country  where  they  are  made.  Now,  the  contract  on 
which  the  present  defendant,  the  acceptor,  is  sued,  was  made  in  Eng- 
land. The  contract  which  the  drawer  proposes  is  this :  He  says : 
"Pay  a  certain  sum  at  a  certain  date  to  my  order."  The  acceptor  makes 
this  contract  his  own  by  putting  his  name  as  acceptor,  and  his  contract, 
if  expanded  in  words,  is:  "I  undertake  at  the  maturity  of  the  bill  to 
pay  to  the  person  who  shall  be  the  holder  under  an  indorsement  from 
you,  the  payee,  made  according  to  the  law  merchant."  How  can  that 
contract  of  the  acceptor  be  varied  by  the  circumstance  that  the  in- 
dorsement is  made  in  a  country  where  the  law  is  different  from  the  law 
of  England?  The  bill  retains  its  original  character;  it  remains  an  in- 
land bill  up  to  the  time  of  its  maturity,  and  is  negotiable  according  to 

5  7  Wlietlier  the  legal  or  only  the  equitable  title  passes  depends  upon  the  law 
of  the  place  of  indorsement,  and  not  upon  the  law  of  the  forum.  Levy  v. 
Levy,  78  Pa.  507,  21  Am.  Rep.  35  (1875). 

0  8  The  statement  of  facts  and  the  concurring  opinion  of  Mellor,  J.,  have 
been  omitted. 


Ch.    2)  OBLIGATIONS.  425 

English  law;  and  by  the  English  law  a  simple  indorsenient  in  blank 
transfers"  flie  right  to  sue  to  the  holder.  This  principle  is  pointedly  ap- 
plied by  the  judgment  in  Trimbey  v.  Vignier,  1  Bing.  N.  C.  151.  My 
brother  Hayes  is  mistaken  in  supposing  that  the  judgment  deals  sim- 
pliciter  with  the  place  of  the  indorsement,  without  reference  to  the  fact 
of  the  instrument  itself  being  a  French  note ;  on  the  contrary,  that  fact 
lies  at  the  very  bottom  of  the  decision.  Thus,  at  the  very  commence- 
ment of  the  judgment  Tindal,  C.  J.,  after  saying  that  the  point  reserved 
was,  whether  the  plaintiff,  under  the  circumstances  stated  in  the  case, 
was  entitled  to  maintain  the  action  in  an  English  court  of  law  in  his 
own  name,  proceeds :  "The  promissory  note  was  made  by  the  defend- 
ant in  France ;  and  it  was  indorsed  in  blank  by  the  payee  in  that  coun- 
try ;  each  of  the  parties,  the  maker  and  the  payee,  being  at  the  respec- 
tive times  of  making  and  indorsing  the  note  domiciled  in  that  country. 
The  first  inquiry,  therefore,  is,  whether  this  action  could  have  been 
maintained  by  the  plaintiff  against  the  defendant  in  the  courts  of  law  in 
France."  He  then  discusses  what  is  the  law  of  France,  and  comes  to 
the  conclusion  that  the  plaintiff,  the  indorsee,  could  not  have  sued  the 
maker  in  his  own  name  in  the  courts  of  France;  and  proceeds:  "The 
question,  therefore,  becomes  this :  Supposing  such  rule  to  prevail  in 
the  French  courts  by  the  law  of  that  country,  is  the  same  rule  to  be 
adopted  by  the  English  courts  of  law,  when  the  action  is  brought  here, 
the  law  of  England,  applicable  to  the  case  of  a  note  indorsed  in  blank  in 
England,  allowing  the  action  to  be  brought  in  the  name  of  the  holder  ? 
The  rule  which  applies  to  the  case  of  contracts,  made  in  one  country  and 
put  in  suit  in  the  courts  of  law  of  another  country,  appears  to  be  this, 
that  the  interpretation  of  the  contract  must  be  governed  by  the  law  of 
the  country  where  the  contract  was  made  (lex  loci  contractus),  the  mode 
of  suing,  and  the  time  witliin  which  the  action  must  be  brought,  must 
be  governed  by  the  law  of  the  country  where  the  action  is  brought." 
He  then  cites  authorities  for  this  position,  and  concludes :  "The  ques- 
tion, therefore,  is,  whether  the  law  of  France,  by  which  the  indorse- 
ment in  blank  does_nat  operate  as  a  transfer  of  the  note,  is  a  rule  which 
governs  and  regulates  the  interpretation  of  the  contract,,  or  .only  relates 
to  the  mode  of  instituting  and  conducting  the  suit.  *  *  *  And  we 
think  the.French  law  on  the  point  above  mentioned  is  the  law  by  which' 
the  contract  is  governed,  and  not  the  law  which  regulates  the  mode  of 
suing.  *  *  *  jf  tjjg  indorsement  has  not  operated  as  a  transfer, 
that  goes  directly  to  the  point  that  there  is  no  contract  upon  which  the 
plaintiff  can  sue.  *  *  *  We  think  that  our  courts  of  law  must  take 
notice  that  the  plaintiff  could  have  no  right  to  sue  in  his  own  name  up- 
on the  contract  in  the  courts  of  the  country  where  such  contract  was 
made ;  and  that  such  being  the  case  there,  we  must  hold  in  our  courts 
that  he  can  have  no  right  of  suing  here."  The  judgment,  therefore, 
proceeds  on  the  ground  that  the  contract,  that  is,  the  contract  of  the 
maker  of  the  note,  having  been  made  in  France,  it  must  be  governed  by 
the  law  of  France.    So  fiere,'the  contract  of  the  acceptor,  having  been 


426  PARTICULAR  SUBJECTS.  (Part  2 

made  in  England,  must  be  governed  by  the  English  law.  It  would  be 
anomalous  to  say  that  a  contract  made  in  this  country  could  be  affected 
by  the  circulation  and  negotiation  in  a  foreign  country  of  the  instru- 
ment by  which  the  contract  is  constituted.  The  original  contract  can- 
not be  varied  by  the  law  of  any  foreign  country  through  which  the  in- 
strument passes.  Therefore,  as  it  seems  clear  to  me,  the  plaintiffs  are 
entitled  to  judgment.  It  is  not  necessary  to  consider  what  would  be 
the  effect  of  this  indorsement  as  against  the  indorser,  if  sued  in 
France ;  probably,  the  courts  of  France  would  hold  that  the  English 
law  governed.  All  we  decide  is,  that,  the  acceptor  having  contracted 
in  England  to  pay  in  England,  the  contract  must  be  interpreted  and 
governed  by  the  law  of  England,  and  that  the  plaintiffs  have  acquired 
a  right  to  sue. 
Judgment  for  the  plaintiffs."* 


w^ 


^^    ilM^  WOODRUFF  V.  HILL. 

(Supreme  Jtidicial  Court  of  Massachusetts,  1874.    116  Mass.  310). 


Contract  upon  a  promissory  note  for  $1,352.70.    At  the  trial  in  the 

r  superior  court,  before  Putnam,  J.,  the  plaintiffs  offered  evidence  tend- 

ing to  prove  that  the  defendants  made  the  note,  and  that  the  payees 
^  indorsed  it  before  maturity  to  the  plaintiffs,  who  paid  to  the  payees 

"^r^      jy^^    j^  at  the^time  of  the  indorsement,  and  as  the   consideration  therefor, 
\^  1    U'  I        $699.48  in  cash,  and  credited  the  payees  with  $629.55,  in  payment  of  a 
^      '^*  Au  II  •  pre-existing  debt  due  from  them  to  the  plaintiffs,  the  balance  of  said 
Af*^**^-      (1m,      M  "°^^  amounting  to  $23.67,  being  charged  and  allowed  for  interest. 
^    ''Cj^     iKjA       '^^^  payees  of  the  note  and  the  plaintiff's  are  residents  of  New  York, 
yMt^^  ^.    ^^  \x    and  the  indorsement  was  made  in  that  state.     The  defendants  are 
^         ^^Jt(        residents  of  Boston,  in  this  commonwealth,  and  the  note  was  made 
'^^  jfxA^        A^ol^' and  was  payable  in  Boston. 

C/*      ^ll^^  (m         The  defendants  offered  to  prove  that  by  the  law  of  New  York  the 

\^A%^^     J^    '^  plaintiffs,  upon  .the  above  evidence,  were  not  bona  fide  holders   for 

ASv^       y^  value  except  as  to  the  amount  of  the  money  paid  by  them  to  the  payees 

^yjr    A  \»<  •         ^^  ^^  time  of  the  indorsement ;  that  the  note  was  given  by  them  with- 

//"■J^^  ^-j/iL/^     .       out  consideration  to  the  payees,  they  agreeing  not  to  use  the  same  ex- 

r'tQ}  \y^   ^^P^  ^^  collateral  to  their  own  note,  to  raise  money  upon;   and  that,  as 

^"^  r^Jr  between  them  and  the  payees,  the  transfer  of  the  note  to  the  plaintiffs 

^  CW^^^  ^^^  fraudulent.     The  defendants  did  not  contend  that  the  plaintiffs 

5  9  But  see  Bradlaugh  v.  De  Riu,  L.  R.  3  C.  P.  538  (1868).     Compare  Eng- 
lish BUls  of  Exchange  Act,  §  72,  2. 

Article  85,  German  Bills  of  Exchange  Act,  provides  that,  if  the  formal  req- 

i    uisites  of  a  contract  placed  upon  a  foreign  bill  or  note  conform  to  German 

'*olaw,  it  shall  be  binding  in  favor  of  all  who  subsequently  become  parties  to 

.   .such  instrument  in  Germany ;  and  if  the  parties  to  such  foreign  contract  are 

.     -^       i^  Uermans,  it  suffices  that,  as  regards  form,  the  provisions  of  the  German  law 

.\X^    i  V     have  been  observed. 


K^i/', 


Gh.   2)  OBLIGATIONS.  427 

had  any  knowledge  of  the  want  of  consideration  of  the  note,  or  of  the 
purpose  for  which  it  was  given. 

The  judge  ruled  that  the  facts  offered  by  the  defendants  would  not, 
if  proved,  constitute  a  defence,  and  that  the  law  of  this  commonwealth 
and  not  the  law  of  New  York  governed,  and  instructed  the  jury  to 
return  a  verdict  for  the  plaintiffs  for  the  whole  amount  of  the  note. 
The  defendants  alleged  exceptions. 

Gray,  C.  J.  The  note  was  made  in  Massachusetts,  and  the  con- 
tract of  the  makers  with  the  payees  and  with  any  indorsee  thereof  was 
to  be  performed  here,  and  governed  by  our  law.  Story,  Confl.  Laws, 
§§  317,  344,  345.  By  that  law,  the  facts  offered  to  be  proved  at  the 
trial  constituted  no  defence.  Blanchard  v.  Stevens,  3  Cush.  162,  50 
Am.  Dec.  723.    Exceptions  overruled.*"* 


AMSINCK  V.  ROGERS. 

(Court  of  Appeals  of  New  York,  1907.    189  N.  Y.  252,  82  N.  E.  134,  121  Am.  St. 
Rep.  8f>8,  12  L.  R.  A.  [N.  S.]  875.) 

This  action  was  brought  against  the  drawers  of  the  following  in- 
strument : 

"New  York,  Jan.  8,  1901. 
"Exchange  for  £2,058.  6/8. 

"On  demand  of  this  original  cheque  (duplicate  unpaid)  pay  to  the 
order  of  Rogers,  Brown  &  Company  twenty-two  hundred  and  fifty- 
eight  pounds  6/8,  payable  at  rate  for  bankers'  cheques  on  London, 
value  received,  and  charge  the  same  to  account  of  pig  iron  per  S.  S. 
Quarnero.  Rogers,  Brown  &  Co. 

"To  Mess.  A.  Herm.  Fraenckl  Soehne,  Ruepgasse,  Vienna,  Austria. 

"No.  75." 

The_instrument  was  drawn,  indorsed,  and  transferred  to  plaintiffs  in 
New  YorTc^  Tt  was  not  paid  by  the  drawees,  and  Rogers,  Brown  & 
Co.  refused  to  pay  upon  the  ground  that  there  was  not  a  proper  pro- 
test and  notice  of  protest.  A  judgment  for  defendants  was  affirmed  by 
the  Appellate  Division  (93  N.  Y.  Supp.  87,  103  App.  Div.  428),  and 
plaintiffs  appeal.''^ 

HiscoCK,  J.°2  *  *  *  It  is  practically  conceded  by  the  learned 
counsel  for  the  appellants  that,  if  the  latter's  obligation  to  cause  pro- 
test and  notice  of  protest  of  this  bill  is  to  be  measured  by  the  laws  of 

6  0  See,  also,  King  v.  Doolittle,  1  Head  (Tenn.)  77  (1858) ;  Webster  v.  Howe 
Mach.  Co.,  54  Conn.  394,  8  Atl.  482  (1886) ;  Brook  v.  Vannest,  58  N.  J.  Law, 
162,  33  Atl.  382  (1895);  Limerick  Nat.  Bank  v.  Howard,  71  N.  H.  13,  51  Atl. 
641,  93  Am.  St.  Rep.  489  (1901). 

61  This  brief  statement  of  facts  has  been  substituted  for  tliat  of  the  original 
report. 

62  Part  of  the  opinion  is  omitted. 


428  PARTICULAR  SUBJECTS.  (Part  2 

New  York  where  it  was  drawn  and  transferred  by  respondents,  there 
has  been  a  failure  of  necessary  steps  which  prevents  a  recovery.  Rec- 
ognizing this,  he  souglit,  as  already  suggested,  to  introduce  evidence 
establishing  a  different  and  less  rigorous  obligation  upon  the  part  of 
the  appellants.  This  evidence  was  to  the  general  effect  that  in  Aus- 
tria, where  the  same  was  payable,  the  instrument  involved  was  not 
a  bill  of  exchange  nor  a  check,  but  a  "commercial  order"  for  the  pay- 
ment of  money  which  was  negotiable,  and  which  might  be  presented 
as  often  as  occasion  arose;  each  presentment  being  legally  good  as 
any  other,  and  no  protest  or  notice  of  dishonor  to  the  drawer  being 
required.  In  connection  with  the  rejection  of  this  testimony,  which 
presents  the  only  questions  upon  this  appeal,  appellants'  counsel  has 
seemed  to  argue  the  proposition,  broader  than  the  evidence  offered, 
that  the  rights  of  the  drawer  of  a  bill  of  exchange  to  protest  and  no- 
tice are  governed  by  the  laws  of  the  place  where  the  bill  is  payable, 
upon  the  assumption  that  in  this  case  such  view  would  excuse  the 
omissions  complained  of  by  respondents.  We  shall  first  discuss  this 
general  proposition  so  urged,  and,  as  we  believe,  shall  demonstrate 
that  the  weight  of  authority  is  that  the  rights  ^nd  obligations  of  the 
drawer  of  a  bill  of  exchange  are  determined  and  fixed  by  the  law  of 
the  place  where  he  draws  it,  and,  as  in  this  case,  transfers  it,  and  that 
he  is  discharged  by  failure  to  protest  the  same  in  accordance  with  the 
laws  of  that  place ;  such  failure  being  due  to  different  laws  or  cus- 
toms prevailing  in  the  country  where  the  bill  is  payable. 

It  is  familiar  law  that  the  contracts  of  the  different  parties  to  a  bill 
of  exchange  are  independent  and  carry  different  obligations.  The 
drawer  of  such  a  bill  does  not  contract  to  pay  the  money  in  the  for- 
eign place  on  which  it  is  drawn,  but  only  guarantees  its  acceptance 
and  payment  in  that  place  by  the  drawee,  and  agrees,  in  default  of 
such  payment,  upon  due  notice,  to  reimburse  the  holder  in  principal 
and  damages  at  the  place  where  he  entered  into  the  contract.  His 
contract  is  regarded  as  made  at  the  place  where  the  bill  is  drawn;  and 
as  to  its  form  and  nature  and  the  obligation  and  effect  thereof  is  gov- 
erned by  the  law  of  that  place  in  regard  to  the  payee  and  any  subse- 
quent holder.  Story  on  Bills  of  Exchange,  §§  131,  154.  While  as 
to  certain  details,  such  as  the  days  of  grace,  the  mannei:_Ql,jTiaking 
the  protest,  and  the  person  by  whom  protest  shalLbe_madjej^_yie_law. 
or  custom  of  the  place  where  it  is  payable  will  govern,  the  necessity 
of  making  a  demand  and  protest  and  the  circumstances  under  which 
the  same  may  be  required  or  dispensed  with  are  incidents  of  the  origi- 
nal contract  which  are  governed  by  the  law  of  the  place  where  the 
bill  is  drawn,  rather  than  of  the  place  where  it  is  payable.  They  con- 
stitute implied  conditions  upon  which  the  liability  of  the  drawer  is 
to  attach  according  to  the  lex  loci  contractus.  Id.  §§  155,  175.  These 
principles  have  been  affirmed  and  enunciated  by  so  many  decisions  that 
it  would  be  out  of  place  to  attempt  a  general  review  of  the  latter,  and 
citation  may  be  made  simply  of  the  following  cases  outside  of  this 


Ch.   2)  OBLIGATIONS.  429 

state:  Powers  v.  Lynch,  3  Mass.  77,  80;  Potter  v.  Brown,  5  East, 
124;  Price  v.  Page,  24  Mo.  65;  Hunt  v.  Standart,  15  Ind.  33,  38, 
77  Am.  Dec.  79;  Raymond  v.  Holmes,  11  Tex.  54,  59;  Allen  v.  Kem- 
ble,  6  Moore's  Privy  Council  Cases,  6. 

Since,  however,  it  is  contended  by  the  learned  counsel  for  the  ap- 
pellants that  the  views  expressed  by  Story  are  in  direct  opposition  to 
the  decisions  in  this  state,  a  somewhat  more  extended  reference  will  be 
made  to  the  latter,  and  with  the  result,  we  apprehend,  of  quite  conclu- 
sively demonstrating  that  the  current  of  their  authority  has  been  mis- 
judged. 

[The  learned  justice  here  commented  upon  Aymar  v.  Sheldon,  12 
Wend.  439,  27  Am.  Dec.  137,  Allen  v.  Merchants'  Bank  of  New  York, 
22  Wend.  215,  34  Am.  Dec.  289,  Carroll  v.  Upton,  2  Sandf.  171,  Arti- 
sans' Bank  v.  Park  Bank,  41  Barb.  599,  and  Susquehanna  Valley  Bank 
V.  Loomis,  85  N.  Y.  207,  39  Am.  Rep.  652,  and  continued  as  follows:] 

Counsel  for  appellants  especially  relies  upon  two  cases  to  sustain  his 
proposition  that  the  rules  laid  down  by  Story  have  not  been  adopted  in 
this  state.  The  first  of  these  cases  is  that  of  Everett  v.  Vendryes,  19  N. 
Y.  436.  This  was  an  action  by  the  indorsee  against  the  drawer  of  a  bill 
of  exchange  drawn  in  New  Granada  upon  a  corporation  having  its  office 
in  this  state.  It  was  payable  to  the  order  of  one  Jimines,  indorsed  by 
him  at  Cartagena,  and  was  protested  for  nonacceptance.  The  answer 
denied  the  indorsement  of  Jimines  in  general  terms.  The  plaintiffs 
claimed  to  be  the  indorsees  according  to  the  legal  effect  of  the  bill. 
The  indorsement  was  not  good  and  sufficient. according  to  the  laws  of 
New  Granada,  but  was  so  according  to  those  of  New  York.  The  ques- 
tion therefore  was  whether  for  the  purpose  of  bringing  an  action  against 
the  drawer  of  the  bill  upon  nonacceptance  by  the  drawee  in  New  York 
state  the  indorsement  was  to  be  tested  by  the  laws  of  New  Granada, 
where  it  was  made,  or  by  the  laws  of  New  York,  where  the  bill  was  pay- 
able. It  was  held  that  the  laws  of  New  York  should  govern,  and  Judge 
Denio,  in  writing  for  the  court,  said :  "I  have  not  been  able  to  find  anv 
authority  for  such  a  case,  but  I  am  of  opinion  that  upon  the  reason  of 
the  thing  the  laws  of  this  state  should  be  held  to  control.  These  laws 
are  to  be  resorted  to  in  determining  the  legal  meaning  and  effect  and 
the  obligation  of  the  contract.  All  the  cases  agree  in  this.  In  this 
case  the  point  to  be  determined  was  whether  the  plaintiffs  were  indor- 
sees and  entitled  to  receive  the  amount  of  the  bill  of  the  drawees.  This 
was  to  be  determined,  in  the  first  instance,  when  the  bill  was  presented 
for  acceptance  and  payment  in  New  York.  The  plaintift''s  title  was 
written  on  the  bill.  The  question  was  whether  it  made  them  indorsees 
according  to  the  effect  of  the  words  of  negotiability  contained  in  the 
bill  itself.  Those  words  and  the  actual  indorsement  were  to  be  com- 
pared, and  the  legal  rules  to  be  employed  in  making  that  comparison 
were  found  in  the  law  merchant  of  the  state  of  New  York,  and  by  those 
rules  the  indorsement  was  precisely  such  a  one  as  the  bill  contemplated 
Besides,  it  is  reasonable  to  suppose  that,  in  addressing  this  bill  to  the 


430  PARTICULAR  SUBJECTS,  (Part  2 

drawees  in  New  York,  the  defendant  contemplated  that  they  would  un- 
derstand the  words  of  negotiability  according  to  the  law  of  their  own 
country.  *  *  *  When,  therefore,  he  directed  the  drawees  to  pay  to 
the  order  of  the  payee,  he  must  be  intended  to  contemplate  that  what- 
ever would  be  understood  in  New  York  to  be  the  payee's  order  was  the 
thing  which  he  intended  by  that  expression  in  the  bill."  In  other  words, 
it  was  held  that  the  indorsement  was  made  for  the  purpose  of  enabling 
the  indorsee  to  present  and  collect  the  note  in  New  York,  and  that  an  in- 
dorsement which  was  effective  for  that  purpose  under  the  laws  of  the 
state  where  performance  would  be  sought  was  sufficient.  It  does  not 
seem  to  us  that  this  decision  in  any  way  conflicts  with  those  to  which  we 
have  already  referred.  It  is  true  that  the  learned  judge  commences  his 
opinion  with  some  general  observations  as  to  the  principles  conceived 
to  be  applicable  in  ascertaining  the  nature  and  interpretation  of  a  bill 
of  exchange.  Such  observations,  however,  constituted  nothing  more 
than  a  dictum,  and  were  not  sufificient  in  our  opinion  to  outweigh  the 
authorities  to  which  we  have  already  referred. 

The  case  of  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367,  38  Am, 
Rep.  518,  involved  consideration  of  a  draft  drawn  in  New  Orleans  upon 
New  York  bankers.  The  case  was  disposed  of  upon  the  theory  that  the 
instrument  was  a  check,  which,  of  course,  was  the  fact,  and  the  obliga- 
tions of  the  drawer  of  a  check,  as  stated  in  the  opinion,  are  entirely 
different  from  those  of  the  drawer  of  a  bill  of  exchange.  The  former 
undertakes  that  'the  drawee  will  be  found  at  the  place  where  he  is  de- 
scribed to  be,  and  that  the  sum  specified  will  be  paid  to  the  holder  when 
the  check  is  presented,  and  if  not  so  paid,  and  he  is  notified,  he  becomes 
absolutely  bound  to  pay  the  amount  at  the  place  named.  In  other  words, 
the  drawer  of  a  check  contracts  to  pay  at  the  place  where  the  check  is 
payable,  instead  of,  as  the  drawer  of  a  bill  of  exchange  does,  at  the  place 
where  the  instrument  is  drawn.  It  is  not  therefore  in  conflict  with  our 
views  to  hold  that  the  rights  of  the  parties  in  the  case  of  such  a  check 
should  be  determined  by  the  law  of  the  place  of  payment;  in  other 
words,  the  place  of  performance  by  the  drawer. 

Our  attention  is  also  called  to  the  case  of  Union  Nat.  Bank  of  Chi- 
cago V.  Chapman,  169  N.  Y.  538,  62  N.  E.  672,  57  L.  R.  A.  513,  88  Am. 
St.  Rep.  614,  but  we  do  not  think  that  what  is  there  said  conflicts  with 
the  views  we  have  expressed.  In  speaking  of  the  general  rules  govern- 
ing the  construction  of  a  contract,  it  is  said:  "All  matters  connected 
with  its  performance  including  presentation,  notice,  demand,  etc.,  are 
regulated  by  the  law  of  the  place  where  the  contract  by  its  terms  is  to 
be  performed." 

In  the  first  place,  if  we  have  correctly  measured  the  weight  of  au- 
thority, it  establishes  the  proposition  that  respondents'  contract  as  draw- 
ers was  to  be  performed  in  New  York,  where  the  bill  was  drawn,  and 
therefore  the  rule  quoted,  if  applicable,  would  lead  to  the  conclusion 
that  demand  and  protest  so  far  as  they  were  concerned  would  be  gov- 
erned by  the  laws  of  New  York.    In  the  second  place,  the  question  in- 


Ch.    2)  OBLIGATIONS.  43^ 

volved  in  the  Chapman  Case  was  not  at  all  akin  to  that  presented  here, 
and  we  do  not  believe  that  the  judge  there  writing  intended  to  approve 
the  rule  that  as  against  drawers  in  New  York  of  a  bill  of  exchange 
entire  omission  of  protest  might  be  justified  by  local  customs  and  usages 
in  a  foreign  country.  We  think  that  he  had  in  mind  certain  compara- 
tively inconsequential  details  of  the  manner  and  method  of  making  de- 
mand and  protest,  and  which,  as  we  have  already  seen,  may  be  affected 
by  local  custom  and  usage,  rather  than  the  entire  omission  of  these  im- 
portant acts.  This  estimate  of  what  was  intended  is  confirmed  by  the 
case  of  Scudder  v.  Union  Nat.  Bank,  91  U.  S.  406,  412,  23  L.  Ed.  245, 
which  is  especially  cited  as  an  authority  for  what  was  being  said.  In 
the  latter  case  it  is  written:  "The  rule  is  often  laid  down  that  the  law 
of  the  place  of  performance  governs  the  contract.  *  *  *  For  the 
purposes  of  payment  and  the  incidents  of  payment  this  is  a  sound  propo- 
sition. Thus,  the  bill  in  question  is  *  *  *  in  law  a  sight  draft. 
Whether  a  sight  draft  is  payable  immediately  upon  presentation,  or 
whether  days  of  grace  are  allowed,  and  to  what  extent,  is  differently 
held  in  different  states.  The  law  of  Missouri,  where  this  draft  is  pay- 
able, determines  that  question  in  the  present  instance.  The  time,  manner, 
and  circumstances  of  presentation  for  acceptance  or  protest,  the  rate 
of  interest  when  this  is  not  specified  in  the  bill  (citations),  are  points 
connected  with  the  payment  of  the  bill,  and  are  also  instances  to  illus- 
trate the  meaning  of  the  rule,  that  the  place  of  performance  governs 
the  bill." 

Thus  far  we  have  assumed  that  the  instrument  in  suit  was  a  bill  of 
exchange,  but  we  have  also  considered  whether  the  drawer's  rights  to 
protest  and  notice  were  governed  by  the  laws  of  Austria  as  though  the 
adoption  of  the  view  that  they  were  so  governed  would  excuse  omission" 
of  those  steps.  As  a  matter  of  fact,  however,  the  appellants  would  not 
be  benefited  if  we  should  hold,  in  this  connection,  that  the  laws  of 
Austria  did  control,  for  no  evidence  was  received  or  offered  that  the 
drawers  of  a  bill  of  exchange  would  not  be  entitled  to  the  same  protest 
and  notice  under  the  laws  of  that  country  as  under  those  of  New  York. 
Appellants'  only  excuse  for  the  omission  of  these  steps  rests  upon  the 
final  proposition  that  this  is  not  a  bill  of  exchange  at  all,  nor  even  a 
check,  but  is  what  is  known  in  Austria  as  a  "commercial  order"  for 
the  payment  of  money  of  which  no  protest  need  be  made.  Support  for 
this  proposition,  it  is  said,  would  have  been  found  in  the  rejected  evi- 
dence which  would  have  established  as  the  Austrian  law  that  a  bill  of 
exchange  must  be  so  designated  in  the  body  of  the  instrument  itself, 
and  that  such  designation  by  mere  superscription  as  was  found  upon 
the  instrument  in  suit  is  not  sufficient.  Therefore,  on  a  close  and  final 
analysis  of  appellants'  argument  it  is  indispensable  that  they  should 
convince  us  that  their  rejected  evidence  would  have  established  that 
this  was  not  to  be  regarded  as  a  bill  of  exchange,  but  as  a  commercial 
order.  We  shall  assume  that  under  the  Austrian  law  it  was  a  commer- 
cial order.     On  the  other  hand,  there  is  no  doubt,  and  in  fact  it  is  not 


432  PARTICULAR  SUBJECTS.  (Part  2 

denied  by  the  learned  counsel  for  Ihe  appellants,  that  it  was  a  bill  of  ex- 
change under  the  laws  of  the  state  of  New  York. 

The  negotiable  instruments  law  (Laws  1897,  p.  745,  c.  612,  as  amend- 
ed) provides  as  follows : 

"Sec.  210.  Bill  of  Exchange  Defined. — A  bill  of  exchange  is  an  un- 
conditional order  in  writing  addressed  by  one  person  to  another,  sign- 
ed by  the  person  giving  it,  requiring  the  person  to  whom  it  is  addressed 
to  pay  on  demand  or  at  a  fixed  determinable  future  time  a  sum  certain 
in  money  to  order  or  to  bearer." 

"Sec.  213.  Inland  and  Foreign  Bills  of  Exchange. — An  inland  bill 
of  exchange  is  a  bill  which  is,  or  on  its  face  purports  to  be,  both  drawn 
and  payable  within  this  state.  Any  other  bill  is  a  foreign  bill.  Unless 
the  contrary  appears  on  the  face  of  the  bill,  the  holder  may  treat  it  as 
an  inland  bill." 

"Sec.  321.  Check  Defined. — A  check  is  a  bill  of  exchange  drawn  on 
a  bank  payable  on  demand." 

It  sufficiently  appears  that  this  bill  was  drawn  upon  a  business  house 
and  was  not  a  check.  It  was  therefore  a  foreign  bill -of  exchange  ac- 
cording to  the  laws  of  New  York.  And  so,  again,  we  are  confronted 
with  the  inquiry  whether  the  rights  of  these  respondents  as  to  the 
nature  of  this  instrument  shall  be  measured  by  the  laws  of  New  York 
or  by  those  of  Austria.  It  seems  'to  us  clear  that  it  must  be  the  former. 
The  parties  had  their  places  of  business  in  New  York.  The  bill  was 
there  drawn  and  negotiated  and  transferred  to  the  appellants.  The 
contract  of  the  respondents  was  executed  and  consummated  there,  and, 
as  we  have  already  seen,  was  to  be  performed  'there  upon  default  of 
the  drawees.  The  law  of  New  York  surrounded  the  parties  and  the  ex- 
ecution of  their  contract,  and  in  our  judgment  it  would  be,  not  only 
erroneous,  but  highly  unreasonable,  to  hold  that  they  contracted  with 
reference  to  any  law  other  than  that  of  New  York,  or  intended, that 
their  contract  should  be  other  than  that  which  such  law  made  it — a 
bill  of  exchange.  The  authorities  which  already  have  been  cited  with 
reference  to  the  contract  and  rights  of  the  drawer  of  a  bill' of  exchange 
are  amply  sufficient  to  sustain  this  view. 

Lastly,  it  is  suggested  that  the  decision  which  we  are  making  will 
impose  much  trouble  and  responsibility  upon  those  who  are  held  for 
the  proper  demand  and  protest  of  paper  in  foreign  countries  where 
commercial  laws  and  usages  differ  from  our  own.  We  do  not  see 
much  balance  of  weight  in  favor  of  this  argument,  even  if  it  is  to  be 
considered.  In  a  case  like  this,  there  would  be  no  great  difficulty  in 
forwarding  with  the  bill  instructions  for  its  proper  protest  such  as 
were  finally  given.  Some  such  precautions  would  not  be  more  onerous 
than  would  those  otherwise  imposed  upon  a  party  to  a  New  York  bill 
of  ascertaining  the  law  of  the  foreign  country  where  it  was  payable  in 
order  that  he  might  learn  in  what  manner  the  rights  secured  to  him 
where  his  contract  was  made  would  be  altered  and  perhaps  material- 
ly impaired. 


Ch.   2)  OBLIGATIONS.  433 

Therefore  we  conclude  that  no  error  was  committed  to  the  prejudice 
of  appellants,  and  that  the  judgment  appealed  from  should  be  affirmed, 
with  costs. 

CuLLEN,  C.  J.,  and  O'Brien,  Edward  T.  Barti^ett,  Haight,  and 
Chase,  JJ.,  concur.    Vann,  J.,  dissents. 

Judgment  affirmed.*^ 


AYMAR  V.  SHELDON. 
(Supreme  Court  of  New  York,  1834.    12  Wend.  439,  27  Am.  Dec.  137.) 


yf-^*^ 


^. 


,^ 


Error  from  the  Superior  Court  of  the  City  of  New  York.  Sheldon 
and  others,  as  endorsees,  brought  a  suit  against  B.  &  I.  Q.  Aymar,  as 
endorsers  of  a  bill  of  exchange,  bearing  date  4th  June,  1830,  drawn  by 
V.  Cassaigne  &  Co.  St.  Pierre,  at  Martinique,  on  L'Hotelier  Freres,  at 
Bordeaux  in  France,  for  4,000  francs,  payable  at  24  days  sight,  to  the 
order  of  B.  Aymar  &  Co.,  the  name  of  the  firm  of  B.  &  I.  Q.  Aymar. 
The  plaintiffs  set  forth  the  endorsement  of  the  bill  of  exchange  at  the 

'city  of  New  York,  where,  they  averred,  that  they  and  the  defendants,        r^jj^       .S^^^^ 
all  being  citizens  of  the  United  States  at  the  time  of  the  endorsement,  ^  •     ■v^  ^ 

respectively  dwelt  and  had  their  homes ;  and  then  aver  that  on  the  11th    •  yt^    .     A'    % 
August,  1830,  the  bill  of  exchange  was  presented  to  L'Hotelier  Freres,  ^ji^  ^^ 

at  Bordeaux  for  acceptance,  according  to  the  custom  of  merchants,  and 
that  they  refused  to  accept ;  whereupon  the  bill  was  duly  protested  for 
nonacceptance,  and  notice  given  to  the  defendants.  The  defendant 
pleaded:  1.  Non  assumpsit;  2.  That  the  bill  declared  on  was  made 
and  drawn  in  the  island  of  Martinique,  a  country  then,  since  and  now, 
under  the  dominion  and  government  of  the  king  of  France,  by  persons 
there  dwelling  subjects  of  the  king  of  France;  and  that  the  bill,  ac- 
cording to  its  tenor  was^yable  at  Paris  in  the  kingdom  of  France,  by 
persons  then  and  still  residing  anddwelTing  at  Bordeaux,  in  the  king- 
dom of  France,  subjects  of  the  king  of  France,  to  wit,  on,  etc.,  at,  etc. ; 
that  the  island  of  Martinique,  as  well  as  Paris  and  Bordeaux,  and  the 
persons  therein  respectively  residing,  and  the  drawers  and  drawees 
were  subject  and  governed  by  the  laws  of  the  kingdom  of  France,  there 

6  3  Accord:  Cass.  Florence,  April  8,  1895  (S.  1896,  4,  7).      . 

With  reference  to  indorsers  the  negotiability  of  the  instrument  has  been 
determined  with  reference  to  the  law  of  the  place  of  indorsement.  Nichols's 
Ex'r  V.  Porter,  2  W.  Va.  13,  94  Am.  Dec.  501  (1867) ;  Hyatt  v.  Bank  of  Ken- 
tucky, 8  Bush  (Ky.)  193  (1S71). 

To  the  effect  that  the  law  of  the  place  where  the  bill  of  exchange  is  drawn, 
and  not  the  law  of  the  place  where  it  is  payable,  will  determine  the  conditions 
precedent  to  the  drawer's  liability,  see  Raymond  v.  Holmes,  11  Tex.  54  (1853) ; 
Warner  v.  Citizens'  Bank  of  Parker,  6  S.  D.  1.52,  60  N.  W.  746  (1894).  So  as 
to  damages.  Bank  of  the  United  States  v.  United  States,  2  How.  (U.  S.)  711. 
746,  11  L.  Ed.  439,  453  (1844) ;  Crawford  v.  Branch  Bank  at  Mobile,  6  Ala.  12,  41 
Am.  Dec.  33  (1844) ;  Price  v.  Page,  24  Mo.  65  (1856) ;  Kuenzi  v.  Elvers,  14 
La.  Ann.  391,  74  Am.  Dec.  434  (1859). 

LoR.CoNF.L.— 28 


434 


PARTICULAR  SUBJECTS. 


(Part  2 


and  then,  and  still  existing  and  in  force,  to  wit,  on  etc.,  at  etc.;  that 
by  the  laws  of  France,  then  and  still  at  the  several  places  in  the  plea 
mentioned,  existing  and  in  force,  it  is  established,  enacted  and  pro- 
vided, in  relation  to  bills  of  exchange  drawn  and  payable  in  the  coun- 
tries, subject  to  the  laws  of  France,  among  other  things,  in  manner  and 
form  following,  namely :  The  drawer  and  endorsers  of  a  bill  of  ex- 
change are  severally  liable  for  its  acceptance  and  payment  at  the  time 
it  falls  due.  Code  de  Commerce,  119.  The  refusal  of  acceptance  is 
evidenced  by  an  act  denominated  protest  for  nonacceptance.  Id.  120. 
On  notice  of  the  protest  for  nonacceptance,  the  endorsers  and  drawer 
are  respectively  bound  to  give  security,  to  secure  the  payment  of  the  bill 
at  the  time  it  falls  due,  or  to  efifect  reimbursement  of  it,  with  the  ex- 
pense of  protest  and  re-exchange.  The  time  when  a  bill  of  exchange 
becomes  due,  if  payable  at  one  or  more  days  after  sight,  is  fixed  by  the 
date  of  the  acceptance,  or  by  the  date  of  the  protest  for  nonacceptance. 
The  holder  is  not  excused  the  protest  for  nonpayment  by  the  protest  or 
nonacceptance.  After  the  expiration  of  the  above  periods  (certain 
periods  specified  in  the  Code,  and  which,  in  the  case  of  a  bill  drawn 
in  the  West  Indies  on  France,  is  one  year),  for  the  presentment  of  bills 
at  sight,  or  one  or  more  days  after  sight,  for  protest  of  nonpayment, 
^     .  '  ithe_holder_of_the  bill  ^oses^all  his_claim  agajnst„his_._eiidQrserSj^etc.,  set- 

"  (P'^'^^^  ftA*  )t"ig  forth,  besides  the  above,  a  variety  of  other  provisions  of  the  French 
Code,  relative  to  bills  of  exchange,  and  then  averring,  that  although 
at  the  time  of  the  commencement  of  the  action  of  the  plaintiifs,  twenty- 
four  days  after  sight  of  the  bill  of  exchange  declared  on  had  elapsed, 
from  the  day  when  the  same  was  alleged  to  have  been  protested  for 
nonacceptance,  yet  no  protest  of  the  said  bill  for  nonpayment  had  been 
made,  concluding  with  a  verification  and  prayer  of  judgment.  3.  The 
defendants  pleaded,  after  referring  to  the  matter  of  inducement  stated 
in  the  second  plea,  that  on  notice  of  protest  for  nonacceptance,  as  al- 
leged in  the  declaration,  they  were  ready  and  willing  to  give  security; 
and  offered  to  the  plaintiffs  to  give  security,  according  to  the  true  intent 
and  meaning  of  the  laws  of  France,  to  secure  payment  of  the  bill  at 
the  time  when  the  same  should  fall  due,  to  wit,  on,  etc.,  at,  etc.,  con- 
cluding as  in  last  plea.  To  the  second  plea  the  plaintiffs  demurred,  and 
took  issue  upon  the  third,  denying  that  the  defendants  did  offer  securi- 
ty, etc. 

The  superior  court  on  the  argument  of  the  demurrer,  adjudged  the 
second  plea  to  be  bad;  after  which  the  issues  of  the  fact  were  tried. 
The  jury  found  for  the  plaintiffs,  on  the  plea  of  nonassumpsit,  and 
assessed  their  damages  at  $895.52,  and  found  a  verdict  for  the  defend- 
ants on  the  third  plea.  Notwithstanding  which  last  finding,  the  court 
gave  judgment  for  the  plaintiffs  on  the  whole  record.  The  defend- 
ants sued  out  a  writ  of  error. 

Nklson,  J.  The  only  material  question  arising  in  this  case  is,  wheth- 
er the  steps  necessary  on  the  part  of  the  holders  of  the  bill  of  exchange 
in  question,  to  subject  the  endorsers  upon  default  of  the  drawees  to  ac- 


Ch.   2)  OBLIGATIONS.  435 

cept,  must  be  determined  by  the  French  law,  or  the  law  of  this  state. 
If  by  our  law,  the  plaintiffs  below  are  entitled  to  retain  the  judgment; 
if  by  the  law  of  France,  as  set  out  and  admitted  in  the  pleadings,  the 
judgmentmust  be  reversed. 

We  have  not  been  referred  to  any  case,  nor  have  any  been  found  in 
our  researches,  in  which  the  point  now  presented  has  been  examined 
or  adjudged.  But  there  are  some  familiar  principles  belonging  to  the 
law  merchant,  or  applicable  to  bills  of  exchange  and  promissory  notes, 
which  we  think  are  decisive  of  it.  The  persons  in  whose  favor  the 
bill  was  drawn  were  bound  to-  present  it  for  acceptance  and  for  pay- 
ment, according  to  the  law  of  France,  as  it  was  drawn  and  payable  in 
French Jemtories ;  and  if  the  rules  of  law  governing  them  were  appli- 
cable to  the  endorsers  and  endorsees  in  this  case,  the  recovery  below 
could  not  be  sustained,  because  presentment  for  payment  would  have 
been  essential  even  after  protest  for  nonacceptance.  No  principle,  how- 
ever, seems  more  fully  settled,  or  better  understood  in  the  commercial 
law,  than  that  the  conTract  of  _the  endorser  is  a  new  and 'independent 
contract,  andjhat  the  extent  of  his  obligations  is  determined  by  it.    The 

TfansTer^by  endorsement  is  equivalent  in  effect  to  the  drawing  of  a  bill, 
the  endorser  being  in  almost  every  respect  considered  as  a  new  drawer. 
Chittyon  Bills,  143 ;  Ballingalls  v.  Gloster,  3  East,  482 ;  Heylyn  v.  Adam- 
son,  2  Burr.  674,  675 ;  Bomley  v.  Frazier,  1  Str.  441 ;  Selw.  N.  P.  256. 
On  this  ground,  the  rate  of  damages  in  an  action  against  the  endorser 
is  governed  by  the  law  of  the  place  where  the  endorsement  is  made,  be- 
ing regulated  by  the  lex  loci  contractus.  Field  v.  Holland,  6  Cranch 
(U.  S.)  21,  3  L.  Ed.  136 ;  2  Kent's  Comm.  460 ;  Hendricks  v.  Franklin, 
4  Johns.  119.  Thatllienature  and  extent  of  the  liabilities  of  the  draw- 
er or  endorser  are  to  be  determined  according  to  the  law  of  the  place 
where  the  bill  is  drawn  or  endorsement  made,  has  been  adjudged  both 
here'and^  in  England.  In  Hicks  v.  Brown,  12  Johns.  142,  the  bill  was 
dra\vTrt5y  the  defendant,  at  New  Orleans,  in  favor  of  the  plaintiff',  upon 
a  house  in-  Philadelphia ;  it  was  protested  for  nonacceptance,  and  due 
notice  given;  the  defendant  obtained  a  discharge  under  the  insolvent 
laws  of  New  Orleans  after  such  notice,  by  which  he  was  exonerated 

.  from  all  debts  previously  contracted,  and  in  that  state,  of  course  from 
the  bill  in  question.  He  pleaded  his  discharge,  here,  and  the  court 
say:  "It  seems  to  be  well  settled,  both  in  our  own  and  in  the  English 
courts,  that  the  discharge  is  to  operate  according  to  the  lex  loci  upon 
the  contract  where  it  was  made  or  to  be  executed.  The  contract  in 
this  case  originated  in  New  Orleans,  and  had  it  not  been  for  the  circum- 
stance of  the  bill  being  drawn  upon  a  person  in  another  state,  there 
could  be  no  doubt  but  the  discharge  would  reach  this  contract ;  and  this 
circumstance  can  make  no  difference,  as  the  demand  is  against  the  de- 
fendant as  drawer  of  the  bill,  in  consequence  of  the  nonacceptance. 
The  whole  contract  or  responsibility  of  the  drawer  was  entered  into 
and  incurred  in  New  Orleans."  The  case  of  Potter  v.  Brown,  5  East, 
124,  contains  a  similar  principle.     See,  also,  Powers  v.  Lynch,  3  Mass. 


n 


436  PARTICULAR  SUBJECTS.  (Part  2 

81;  Van  Raugh  v.  Van  Arsdaln,  3  Caines,  154,  2  Am.  Dec.  259 ;  Sher- 
rill  V.  Hopkins,  1  Cow.  107;  Slacum  v.  Pomery,  6  Cranch  (U.  S.)  231, 
3  L.  Ed.  204;  Andrews  v.  Herriot,  4  Cow.  512,  note. 

The  contract  of  endorsement  was  made  in  this  case,  and  the  execu- 
tion of  it  contemplated  by  the  parties  in  this  state ;  and  it  is  therefore 
to  be  construed  according  to  the  laws  of  New  York.  The  defendants 
below,  by  it,  here  engage  that  the  drawees  will  accept  and  pay  the  bill 
on  due  presentment,  or,  in  case  of  their  default  and  notice,  that  they 
will  pay  it.  All  the  cases  which  determine  that  the  nature  and  extent 
of  the  obligation  of  the  drawer  are  to  be  ascertained  and  settled  accord- 
ing to  the  law  of  the  place  where  the  bill  is  drawn,  are  equally  appli- 
cable to  the  endorser;  for,  in  respect  to  the  holder,  he  is  a  drawer. 
Adopting  this  rule  and  construction,  it  follows  that  the  law  of  New 
York  must  settle  the  liability  of  the  defendants  below.  The  bill  in 
this  case  is  payable  24  days  after  sight,  and  must  be  presented  for  ac- 
ceptance; and  it  is  well  settled  by  our  law,  that  the  holder  may  have 
immediate  recourse  against  the  endorser  for  the  default  of  the  drawee 
in  this  respect.  Mason  v.  Franklin,  3  Johns.  202 ;  Chitty  on  Bills,  231, 
and  cases  there  cited. 

Upon  the  principle  that  the  rights  and  obligations  of  the  parties  are 
to  be  determined  by  the  law  of  the  place  to  which  they  had  reference 
in  making  the  contract,  there  are  some  steps  which  the  holder  must  take 
according  to  the  law  of  the  place  on  which  the  bill  is  drawn.  It  must 
be  presented  for  payment  when  due,  having  regard^  to  the  number  of 
days  of  grace  there,  as  the  drawee  is  under  obligation  to  pay  only  ac- 
cording to  such  calculation;  and  it  is  therefore  to  be  presumed  that 
the  parties  had  reference  to  it.  So  the  protest  must  be  according  to 
the  same  law  which  is  not  only  convenient,  but  grows  out  of  the  neces- 
sity of_thejcase.  The  notice,  however,  must  be  given  according  to  the 
law  of  the  place  where  the  contract  of  the  drawer  or  endorser,  as  th^ 
case  may  be,  was  made,  such  being  an  implied  condition.  Chitty  on 
Bills,  266,  93,  217;  Bayley,  28;  Story's  Conflict  of  Laws,  298. 

The  contract  of  the  drawers  in  this  case,  according  to  the  French 
law,  was  that  if  the  holder  would  present  the  bill  for  acceptance  within 
one  year  from  date,  it  being  drawn  in  the  West  Indies,  and  it  was  not 
accepted,  and  was  duly  protested,  and  notice  given  of  the  protest,  he 
would  give  security  to  pay  it,  and  pay  the  same  if  default  was  also 
made  in  the  payment  by  the  drawee  after  protest  and  notice.  This  is 
the  contract  of  the  drawers,  according  to  this  law,  and  the  counsel  for 
the  plaintififs  in  error  insists  that  it  is  also  the  implied  contract  of  the 
endorser  in  this  state.  But  this  cannot  be,  unless  the  endorsement  is 
deemed  an  adoption  of  the  original  contract  of  the  drawers,  to  be  regu- 
lated by  the  law  governing  the  drawers,  without  regard  to  the  place 
where  the  endorsement  is  made.  We  have  seen  that  this  is  not  so; 
that  notice  must  be  given  according  to  the  law  of  the  place  of  endorse- 
ment; and  if,  according  to  it,  notice  of  nonpayment  is  not  required, 
none  of  course  is  necessary  to  charge  the  endorser.     But  if  the  above 


Ch.    2)  OBLIGATIONS.  437 

position  of  the  plaintiffs  in  error  be  correct,  notice  could  not  then  be 
dispensed  with,  the  law  of  the  drawer  controlling.  The  above  position 
of  the  counsel  would  also  be  irreconcilable  with  the  principle,  that  the 
endorsement  is  equivalent  to  a  new  bill,  drawn  upon  the  same  drawee ; 
for  then  the  rights  and  liabilities  of  the  endorser  must  be  governed 
by  the  law  of  the  place  of  the  contract,  in  like  manner  as  those  of 
the  drawer  are  to  be  governed  by  the  laws  of  the  place  where  his  con- 
tract was  made.  Both  stand  upon  the  same  footing  in  this  respect, 
each  to  be  charged  according  to  the  laws  of  the  country  in  which  they 
were  at  the  time  of  entering  into  their  respective  obligations. 

I  am  aware  that  this  conclusion  may  operate  harshly  upon  the  en- 
dorsers in  this  case,  as  they  may  not  be  enabled  to  have  recourse 
over  on  the  drawers.  But  this  grows  out  of  the  peculiarity  of  the 
Commercial  Code  which  France  has  seen  fit  to  adopt  for  herself,  ma- 
terially differing  from  that  known  to  the  law  merchant.  We  cannot 
break  in  upon  the  settled  principles  of  our  commercial  law,  to  ac- 
commodate them  to  those  of  France  or  any  other  country.  It  would 
involve  them  in  great  confusion.  The  endorser,  however,  can  always 
protect  himself  by  special  endorsement,  requiring  the  holder  to  take 
the  steps  necessary  according  to  the  French  law,  to  charge  the  draw- 
er. It  is  the  business  of  the  holder,  without  such  an  endorsement,  only 
to  take  such  measures  as  are  necessary  to  charge  those  to  whom  he  in- 
tends to  look  for  payment. 

Judgment  affirmed.^* 

6*  So  as  to  the  necessity  of  demand,  protest  and  notice  for  nonpayment  at 
tlie  time  of  maturity.  Holbrook  v.  Vibbard,  2  Scam.  (111.)  465  (1840)  ;  Allen 
V.  Merchants'  Bank  of  New  York,  22  Wend.  215,  34  Am.  Dec.  289  (1839) ;  Read 
V.  Adams,  6  Serg.  &  R.  (Pa.)  35G  (1821);  Douglas  v.  Bank  of  Commerce,  97 
Tenn.  133,  36  S.  W.  874  (1896). 

So  as  to  necessity  of  previous  suit  against  the  maker  or  acceptor.  Williams 
V.  Wade,  1  Mete.  (Mass.)  82  (1840) ;  Hunt  v.  Standart,  15  Ind.  33,  77  Am.  Dec. 
79  (1860);  Rose  v.  Park  Bank,  20  Ind.  94,  83  Am.  Dec.  306  (1863).  Or  the 
want  of  consideration.  Wood  v.  Gibbs,  35  Miss.  .559  (1858).  Or  the  defense  of 
usury.  Glidden  v.  Chamberlin,  167  Mass.  486,  46  N.  E.  103,  57  Am.  St.  Rep. 
479  (1897).  If  the  instrument  is  draiwn  or  indorsed  for  accommodation,  how- 
ever, the  defense  of  usury  will  be  governed  by  the  law  of  the  place  where  it 
was  first  delivered  for  value.     Davis  v.  Clemson,  Fed.  Cas.  No.  3,630  (18.55). 

So  the  amount  of  recovery  as  against  the  drawer  or  Indorser  will  be  de- 
termined by  the  law  applicable  to  their  respective  contracts.  Slacum  v. 
Pomery.  6  Cranch  (U.  S.)  221,  3  L.  Ed.  204  (1810) ;  Gibbs  v.  Fremont,  9  Exch. 
2.5.  Contra:  Bank  of  Illinois  v.  Brady,  3  McLean,  268,  Fed.  Cas.  No.  888  (1843) ; 
Mullen  V.  Morris,  2  Pa.  85  (1845) ;  Peck  v.  Mayo,  14  Vt.  33,  39  Am.  Dec.  205 
(1842). 

The  presumptive  intent  of  the  parties,  however,  has  been  held  to  be  the  ulti- 
mate criterion  of  the  indorser's  liability.    Vanzant  v.  Arnold,  31  Ga.  210  (1860), 


438 


PARTICULAR  SUBJECTS. 


(Part  2 


QJ^ 


.v^- 


y^ 


WOOLEY  V.  LYON. 

(Supreme  Court  of  Illiuois,  188G.    117  111.  244,  6  N.  E.  885,  57  Am.  Rep.  867.) 

Sheldon,  J.*  This  action  was  brought  by  Lyon,  as  indorsee,  against 
Wooley,  as  indorser,  of  two  promissory  notes,  one  for  $632.36,  the 
other  for  $626.85,  both  dated  July  9,  1875,  one  payable  in  60,  the  other 
in  90,  days,  made  by  Dobbins  &  Co.,  and  payable  to  the  order  of  Wool- 
ey at  the  maker^s  office  in  Chicago,  Illinois.  Upon  the  trial  in  the 
court  below'THereappeared  upon  the  notes,  over  the  indorsement  of 
Wooley,  the  following :  "Pay  to  order  of  Thos.  R.  Lyon."  There  also 
appeared  the  following:  "Without  recourse.  Orrin  W.  Potter,  as 
Executor  Estate  E.  B.  Ward."  The  plaintifif  had  judgment  for  the 
amount  of  the  notes,  which  was  affirmed  by  the  appellate  court  for 
the  second  district  and  the  defendant  brings  this  writ  of  error.  The 
errors  which  are  here  insisted  upon  are  in  respect  of  instructions  to 
the  jury.     The  notes jwere^nxioi;:£ed_Jn_Wank_by  Wooley,  and  were 


negotiated  by  him,  so  indorsed  in_Jdj'chigan,  having  been  ^ejQi_^fter 

some  correspon^trrceT'fforri  Fruitport,  MichigarT  to  Ludm^toUr  Michi- 

■gan,  ^nT^par^nfrPTrh-jf < ^  by  "jgoofey^Tlhe  estate.. of 

E.  B /Ward,  or,  rather  in  payment  of^  two  other  similar  noteswliich 
ha'^  --     ----- 


^pen^^g-gko^jn^^Hy^WmTpy  fnrjnrnher.  ^  ^  ^ 
The  sixth  instruction  given  for  the  plaintift  is  objected  to,  which  was 
to  the  effect  that  if,  after  the  maturity  of  the  notes,  the  defendant  was 
informed  of  their  non-payment,  and,  being  so  informed  acknowledged 
his  liability  as  indorser,  and  agreed  to  settle  or  pay  the  amount  due, 
then  it  is  immaterial,  under  the  Michigan  law,  whether  the  protest  wa? 
legal  or  proper.  This  instruction,  if  faulty,  could  have  done  the  de- 
fendant no  harm,  for  the  reason  that  the  necessary  steps  under  the  law 
of  this  state  were  taken  to  charge  defendant  as  indorser,  viz.,  demand 
of  payment,  protest  for  non-payment,  and  notice  of  non-payment  ad- 
dressed to  defendant  at  a  proper  place,  all  which  the  evidence  shows 
were  duly  made  and  given  in  accordance  with  our  own  law,  where  the 
defendant's  liability  became  fixed,  and  it  was  immaterial  whether  or 
not  he  made  a  subsequent  promise  to  pay  the  notes.  The  notes  beijig 
payable  in  this  state,  and  the  contract  of  indorsement  being  made  m 


ie  place  where 


vP^ 


~tlie  notes  were  payable  we  corisider  governed  as  to  time  and  mode  of 
^j^resentmenL'^orTpaymenlTj^  ~gfT^~giving  notice.     2 

Pars.  Notes  &  Bills,  344;'345  ;  >T)anierNegrfnsr|f^ll,  912 pRoths- 
child  V.  Currie,  1  Adol.  &  E.  (N.  S.)  43 ;  Hirschfeld  v.  Smith,  L.  R. 
1  C.  P.  350.  There  is  a  conflict  of  authority  as  to  what  law  should 
govern  in  the  giving  of  notice  of  dishonor — whether  the  law  of  the 
place  of  payment  or  the  law  of  the  place  where  the  indorsement  is 
made.    Ayni^-jg^Sheldon,  12  Wend.  (N.  Y.)  439,  27  Am.  Dec.  137, 

*A  part  of  the  opipion  has  been  omitted. 


Ch.  2) 


OBLIGATIONS. 


439 


and  some  other  American  cases,  hold  the  notice  should  be  according  to 
the  law  of  the  place  of  the  indorsement ;  and  see  Redf .  &  B.  Lead.  Cas. 
Bills  &  Notes,  712,  in  note  to  above  case  of  Aymar  v.  Sheldon.  We 
are  disposed  to  adopt  the  rule  that  the  notice  should  be  in  accordance 
with  the  law  of  the  place  where  the  bill  or  note  is  made  payable,  as 
resting  upon  the  better  reason.     *     *     *  -j- 

ROUQUETTE  v.  OVERMANN.  ^  ^ 

(Queen's  Bench,  1875.    L.  R.  10  Q.  B.  525,  44  L.  J.  Q.  B.  221.) 


i/^ 


t--j 


L     1^ 


Plaintiff  is  the  indorsee  and  holder,  defendants  the  drawers  and  in- 
dorsers,  of  the  following  bill  of  exchange : 

"Manchester,  28  June,  1870,  for  £345.  15s.  2d.  sterhng.  On  the  5th 
of  October,  1870,  pay  this  first  of  exchange  (second  and  third  unpaid) 
to  the  order  of  ourselves  the  sum  of  £345.  15s.  2d.  sterling,  at  the 
exchange  as  per  indorsement,  for  value  received,  which  place  to  account 
as  advised.  Overmann  &  Schou. 

"To  Messrs.  Magalhaes  Freres,  5  Rue  Martel,  Paris." 

The  bill  was  indorsed  in  England  by  defendants,  who  were  merchants 
in  Manchester,  to  plaintiff,  an  English  subject,  carrying  on  business 
in  London.  Plaintiff  indorsed  the  bill  to  Messrs.  Krauetler  &  Mie- 
ville,  English  subjects  and  residents  of  England,  who  indorsed  the  bill 
in  London  to  Messrs.  Pillet,  Will  &  Co.,  French  subjects  and  residents 
of  Paris.  The  bill__was  duly  accepted  by  the  drawees  at  their  place 
of  business  in_P^xis.  During  the  currency  of  the  bill,  viz.  from  July 
23,  1870,  to  January  20,  1871,  France  and  Prussia  were  at  war.  As  a 
consequence,  through  different  legislative  enactments  beginning  with 
that  of  August  13,  1870,  the  time  of  presentment,  protest,  and  notice 
of  negotiable  paper  issued  before  the  promulgation  of  such  law  was 
extended,  and  the  right  of  recourse  against  the  indorsers  and  other 
parties  postponed,  until  September  5,  1871.  On  that  date  Pillet,  Will 
&  Co.  presented  the  bill  for  payment,  which  was  refused.  The  bill 
was  duly  protested  for  nonpayment  on  September  6,  1871.  Notice  of 
dishonour  and  protest  was  given  by  the  holder  to  Krauetler  &  Mieville 
on  September  8,  1871,  in  manner  required  by  French  law,  and  was  re- 
ceived by  them  on  September  9th.  On  the  same  day  they  gave  the 
like  notice  to  the  plaintiff,  and  he  on  the  same  day  gave  the  like  notice 
to  defendants,  who  refused  to  pay  the  bill.  The  plaintiff  paid  the  bill, 
before  action,  to  Krauetler  &  Mieville,  and  now  sues  to  recover  the  /%/t^ 
sum  so  paid,  with  interest.  Defendants  had  no  notice  that  the  bill  had  '^  (^  ^  5v\ 
not  been  presented  for  payment  prior  to  September  6,  1871,  nor  of  any  -  \jiA^  .• 
of  the  laws  or  proclamations  of  the  French  government."^  l*^        »   5l><^'     • 


n^ 


>^ 


t  Contra,  and  in  favor  of  the  law  of  the  place  of  drawing  or  indorsement, 
Snow  V.  Perkins,  2  Mich.  238  (1851) ;  Thorp  v.  Craig,  10  Iowa,  461  (1860).  ^ 

6  5  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re-'VA^ 
port. 


lA^-rtA.  4    jA-^ou/rc^*^ 


440 


PARTICULAR  SUBJECTS. 


(Part  2       i 


CoCKBURN,  C.  J.^®  *  *  *  The  main  ground  for  the  defence  is 
that  due  diHgence  was  not  used  by  the  holders  of  the  bill  in  presenting 
it  for  payment  at  the  appointed  time,  or  in  giving  notice  of  dishonour 
on  its  nonpayment  at  that  time ;  by  reason  of  which  the  indorsers  were 
discharged;  whence,  as  was  contended,  it  followed  that  the  plaintiff 
had  paid  the  bill  in  his  own  wrong,  and  therefore  could  not  claim  to 
be  indemnified  by  the  defendants;  who,  again,  it  was  said,  were  en- 
titled on  their  own  account  to  notice  of  dishonour  on  nonpayment  at 
the  regular  time — it  being  contended  that  whatever  mio-ht  he  the  effect 
of  this  special  legislation  o.£.^he  .bVench-  gfovcrnment.  as-Jaetween  the 
holders~ol~the  billandthe  acceBtors,_the_holders,  though  resident  in 
FranceT^erebound,  theHjill  having  been  drawji_an(Lindorsed  in  Eng- 
land,  iFTtTey"'3eSife"d  to  fix  tKe  partiesTin  tfiTscountry,  to  present  the 


bill  for  pa^nment  at  the  time  at'"which  it  fell  due  in  the  regular  coi|rs£. 
accorTtmg  tolTs~TgTl5f7"and  if~it  was  not~tHeii_paid,  to^ive  notice  of  its 
4he  right  to  msist  on  due  diligence  in  these  particulars  ac- 


dishonour- 

cordmgnfo  the  law  of  England,  as  a  condition  precedent  of  liability, 
being  one  which  it  was  not  competent  to  a  foreign  legislature  to  affect. 
That,  at  all  events,  the  transaction  between  the  defendants  and  the 
plaintiff  having  occurred  in  this  country,  their  respective  rights  and  lia- 
bilities must  be  determined  by  English  law.  The  implied  contract  of  in- 
demnity, which  attaches  on  nonpayment  of  a  bill  of  exchange,  is  based, 
it  was  urged,  on  the  assumption  that  the  bill  will  be  presented  for  pay- 
ment at  the  time  specified  by  it ;  and  that,  in  case  of  nonpayment,  notice 
of  dishonour  will  thereupon  be  given.  How  then,  it  was  asked,  can 
the  right  to  insist  on  these  as  the  conditions  of  liability  on  a  bill  drawn 
and  indorsed  in  this  country  be  modified  or  affected  by  the  legislation 
of  a  foreign  country? 

The  question  is  of  considerable  importance  and  interest  in  a  juridical 
point  of  view.  It  has  occupied  the  attention  of  the  tribunals  in  Ger- 
many, Switzerland,  and  Italy.  The  High  Court  of  Leipzig  has  decid- 
ed  it  in  favour^f  the  view  presented  to  us  on  the  part  of  the  dcTehd- 
ants.  The  High  Court  of  Geneva  "and  the  Cour  de  Cassation  of  Turin 
have  come  to  the  opposite  cpnclusioo.    Our  view  coincides  with  theirs. 

TiT'considering  the  subject,  two  questions  present  themselves.  The 
first,  as  to  what  was  the  effect  of  this  special  legislation  on  the  ob- 
ligations of  the  acceptors ;  the  second,  as  to  what,  if  any,  was  its  effect 
on  the  rights  and  liabilities  of  the  drawers  and  indorsees  inter  se.  It 
is  with  the  second  question  that  we  are  more  immediately  concerned ; 
but  the  consideration  of  the  first  may  materially  assist  us  towards  the 
satisfactory  solution  of  the  second. 

Now  that,  so  far  as  the  French  law  was  concerned,  the  effectof^  th£. 
exceptional  legislation  in  question  was  to  substitute.  aS-JJifi-tii-ne^ofpay- 
meirtjjthe  £xftH=at4oa-Q£_tli£_period  of  grace_affordedJiVLiLfor  the  time 
specified  in  the  bill,  and  to  suspend  till  then  the  legal  obligation  of  the 


66  Part  of  the  opinion  is  omitted. 


Ch.  2) 


OBLIGATIONS. 


Ul 


acceptors  to  pay,  cannot  be  douMed.  If  the  bill  had  been  presented  for 
par^Trreftt--©ft-^tTt:'^th  ot  October,  and  payment  having  been  refused,  an 
action  had  been  brought  in  a  French  court  against  the  acceptors,  wheth- 
er by  a  French  or  foreign  holder,  the  plaintiff  must  by  the  effect  of  the 
new  law  have  been  defeated.  Even  if  the  acceptors  had  btrr.n  found  in 
this  country,  and  an  action  had  been  brought  against  themjn_an  Eiig- 
lish  court,  thFTggult  must  have  been  the  sanie.  It  is  well  settled  that 
the  incidents^rrf'-presenfmerrF  and  payment  must  be  regulated  "and_  de- 
termined bythe  law:  of  the^lace  of  performance — a  rule  which  is  strik- 
ingly illustrated  by  the  farrnlTar  but  pertinent  example  of  the  effect  of 
days  of  grace  being  allowed  by  the  law  of  the  country  where  a  bill  of 
exchange  is  drawn,  but  not  by  the  law  of  the  country  where  it  is  pay- 
able, or  vice  versa,  the  payment  of  the  bill  being,  as  is  well  known,  de- 
ferred till  the  expiration  of  the  days  of  grace  in  the  one  case,  but  not 
so  in  the  other.  And  this  arises  out  of  the  nature  of  the  thing,  as  the 
acceptor  cannot  be  made  liable  under  any  law  but  his  own.  It  is,  in- 
deed,  true  that,  in  the  present  instance,  the  period  of  grace  has  been 
aocordeg~'55i2ex]^ost  facto  legi'^lai-ipn  But  this  appears  to  us  to  make 
no  difference  inthe  resujt,  at  all  events  so  far  as'fhe  obligations  ot  tlie 
acceptof5~aTe"con£erned.  The  power  of  a  legislature  to  interfere  with 
and  modify  vested  and  existing  rights  cannot  be  questioned,  although 
no  doubt  such  interference,  except  under  most  exceptional  circum- 
stances, would  be  contrary  to  the  principles  of  sound  and  just  legis- 
lation. 

Such  being.the  effect  of  this  legislation  on  the  liability  of  the  acceptor, 
we  have  next  to  consider  its  effect  on  the  relative  position  of  the  drawer 
and  the  drawee  or  indorsee  and  holder.  It  is  said  that,  although  the 
obligations  of  the  acceptor  may  be  determined  by  the  lex  loci  of  the 
country  in  which  the  bill  is  payable,  the  contract  as  between  the  drawer 
and  indorsee  must  be  construed  according  to  the  law  of  the  country 
where  the  bill  was  drawn ;  and,  consequently,  that  in  order  to  make  the 
defendants,  the  drawers  of  this  bill,  liable,  the  bill  should  have  been  pre- 
sented at  the  time  specified  in  it,  and  on  nonpayment  notice  of  dishonour 
should  thereupon  have  been  given  according  to  the  requirements  of  Eng- 
lish law.  It  is  unnecessary  to  consider  how  far  this  position  may  lipid 
good  as  to  malter_o|^fQirn^or  stamp  objections,  or  i11pcya1ity_^  consid- 
eratioBT^UTTHeTiker  We  cannot  concur  in  it  as  applicabletol:he  sub- 
stance  of  the  contract,  so  far j£_pfg5gMm,eli"t  for  paymentjs  concerned ; 
still  less  to3_formalify^requjred3on  nonpayment  in  order  to  enable  the 
holder'ToTiave  reronrse'lYranmiTfirpdpnr~party  fn  the.  hilT7  Applied  fo 
these  incid^Tlts'of~the  contractT  this  reasoning  appears  to  us  altogetter 
to  overlook  the~trnF~TTaIufgT?f  the  contract  which  a  party  transferring 
for  value  the  property  in  a  bill  of  exchange  rnakes  with  the  transferee. 
All  that  hc^es  is  to  warrant  tBat  the  bill  shall  be  accepted  by  the 
drawee,  and,  having  been  accepted,  shall,  on  being  presented  at  the  time 
it  becomes  due,  be  paid.  In  other  words,  he  engages  _assurety  for  the 
due  performance  by_JiL£__acceptor  of  the  obligations~which  the  lattei 


442 


PARTICULAR  SUBJECTS. 


(Part  2 


takes  on  himself  by  the  accgfttance.  His  HabiHty,  therefore,  is  to  be 
measufed_pJjHatjofthe  acceptor,  whose  surety  Jie  is;  and  as  the  ob-. 
Hgations_olJhjeZa£c5ptgrrarsitcr^  dHerminedJjy  the  lexloci  of  per- 
formance_,_SO_also  rnust  be  thjQge  of  the  surety^  To~HoIcr  otherwise 
wouTHobviously  lead  to  very  startling  anomalies.  The  holder  might 
sue  the  drawer  or  indorser  before,  according  to  the  law  applicable  to 
the  acceptor,  the  bill  became  due ;  or,  the  acceptor  having  refused  pay- 
ment till  the  expiration  of  the  period  of  grace  thus  afforded  him  by 
the  new  law,  but  on  presentment  at  the  end  of  that  time  having  duly 
paid,  the  holder  might  claim  compensation  against  the  indorser  in  re- 
spect of  any  loss  he  might  have  sustained  by  reason  of  the  delay,  al- 
though the  obligations  of  the  acceptor  had  been  fully  satisfied  by  the 
payment  of  the  bill.  Again,  as  a  bill  may  be  indorsed  in  different  coun- 
tries  before  it  arrives  atmatu  rrty^n  d  each  indR)rseiTienj^_becoriies.  a 
fresh  undgyfaEng"lvith"TTTe  subser^uent^paT^^^  theJhi1]_for  due  per- 
formance  by  the  acceptor,  unless  the  performance  to  whichthe^cceptor 
is  boundT^slrTade^he  measilrF arTg^fetirmlrDfljea'cH  indol-ser'snTahilTt-y, 
confusion-must  arrse-TTrUetermininsf  bv  whalJ.a:w.J;hjej'ights  and  lia- 


bilities'oj  theltrfferenflndorsers  and  indorsees  inter  seshall  be  gov 
erned.  ' 

TTmay  be  urged,  no  doubt,  that,  though  it  may  be  true  that  the  parties 
to  a  bill  of  exchange,  payable  in  a  foreign  country,  may  be  assumed  to 
have  contracted  for  the  payment  of  the  bill  according  to  the  existing 
law  of  the  country  in  which  it  is  to  be  paid,  they  cannot  be  assumed  to 
have  contracted  on  the  supposition  of  that  law  being  altered  in  the  in- 
terval prior  to  the  bill  becoming  due ;  that,  on  the  contrary,  the  inten- 
tion of  the  parties  was  that  the  bill  should  be  paid  according  to  the 
existing  law,  and  the  undertaking  of  the  party  transferring  it  w^as 
that  it  should  be  so  paid ;  and  that  such  being  the  effect  of  the  indorse- 
ment, the  obligation  of  the  indorser  cannot,  as  between  him  and  his  in- 
dorsee, be  affected  by  ex  post  facto  legislation  in  the  foreign  country. 
A  strong  argument  ab  inconvenienti  may  also  be  founded  on  the  serious 
consequences  which  may  ensue  to  the  holder  of  a  bill  of  exchange,  if 
the  time  of  payment,  as  fixed  by  the  bill,  may  be  postponed  by  subse- 
quent legislation.  He  may  require  the  money  secured  by  the  bill  at  the 
precise  moment  it  is  to  become  due ;  he  may  have  purchased  the  bill  for 
the  purpose  of  insuring  the  command  of  it.  The  delay  in  receiving  it 
may  involve  him  in  the  greatest  embarrassment.  The  indorser  ought, 
therefore,  to  be  held  strictly  to  his  undertaking  that  the  bill  shall  be 
met  at  the  time  stated  in  it,  and  contemplated  by  the  parties  as  the  date 
of  payment.  That  to  hold  otherwise  would  be  materially  to  shake  the 
credit  and  impair  the  utility  of  negotiable  instruments. 

To  the  first  of  these  arguments  it  may  be  answered,  that  the  indorser 
of  a  bill  guarantees  its  payment  only  according  to  the  effect  of  the  bill 
at  the  place  of  payment.  He  transfers  all  the  right  the  acceptance  gives 
him  against  the  acceptor,  and  guarantees  that  the  obligations  of  the  lat- 
ter, as  arising  from  the  acceptance,  shall  be  fulfilled.    If,  by  an  altera- 


Ch.    2)  OBLIGATIONS.  443 

tion  of  the  local  law  pending  the  currency  of  the  bill,  the  obligations  of 
the  acceptor  are  rendered  more  onerous,  those  of  the  indorser  become 
so  likewise.  Thus,  if  it  were  enacted  that  certain  days  should  be  treat- 
ed as. holidays,  and  that  a  bill  falling  due  on  any  one  of  'them  should  be 
paid  at  an  earlier  date,  the  indorser,  on  nonpayment  of  the  bill  at  such 
earlier  date,  would  become  liable  from  such  date.  On  the  other  hand, 
if  the  time  of  payment  were  postponed  by  a  period  of  grace  being  al- 
lowed, or  by  an  enactment  that  a  bill,  falling  due  on  a  day  appointed 
to  be  kept  as  a  holiday,  should  be  payable  a  day  after,  as  was  done  by 
St.  31  &  35  Vict.  c.  17,  the  period  at  which  the  liability  of  the  indorser 
on  nonpayment  by  the  acceptor  would  arise,  would  be  pro  tanto  delayed. 

To  the  second  argument  it  may  be  answered,  that  it  goes  rather  to 
the  expediency  of  such  exceptional  legislation  than  to  its  effect.  Fur- 
ther, that  the  instances  in  which  it  is  resorted  to  are  so  extremely  rare 
as  to  be  little  likely  to  have  the  effect  of  lessening  the  faith  in  negotiable 
instruments  or  diminishing  their  utility. 

If,  then,  the  right  of  the  holder,  as  against  the^acceptor  .and_.the  an- 
tecedent  parties,  can_be_tTius  iiTocTiIied.  m  respect  of  the  time  of  pay- 
ment,  therein  be  no  injustice  or  hardship  towards  them  in  ho1din^< 
him  exempted  from  tHe~6bligatibns  of  presenting  the  bill  enrh>i-  i^hf)^ 

his  r"lglTrT?f~payllieht^acHrueS^_Qr^  <^^  rlkhnnnnr  in  QjHpr 

to  preserve  his  right  of  recourse  to  them. 

If  the  time~oF  payment,"  wHiclris"'on:he  essence  of  the  contract,  and 
the  consequent  necessity  for  presentment  at  the  original  time  can  thus  be 
postponed,  it  would  seem  to  follow  that,  a  fortiori,  a  formality,  the  ne- 
cessity for  which  arises  only  on  the  nonfulfillment  of  his  obligation,  by 
the  acceptor,  would  follow  any  alteration  introduced  by  the  law  in  re- 
spect of  the  time  at  which  that  obligation  was  to  be  discharged.  But, 
independently  of  this  consideration,  we  are  of  opinion,  on  general  prin- 
ciples,  that  ngtire  of  disliitnouti  cannot  be^  required  until  payment  has 
been  legally^emandableof  the  acceptor,  and  has  been-r^fn^^pd.  It  is 
true  that  ifTEie^biiThad  been  presented  for  payment  at  the  time  men- 
tioned in  it,  the  acceptors  might,  possibly,  have  omitted  to  avail  them- 
selves of  the  indulgence  accorded  by  the  special  law,  and  might  have 
paid  at  once.  But  so  might,  possibly,  the  acceptor  of  a  bill  under  or- 
dinary circumstances,  if  asked  to  do  so  as  matter  of  grace  or  of  special 
arrangement.  Thie  holder  of  a  bill  of  exchange  cannot  be  held  bound 
to  presentjt  for  payment_tillJt_becomes  legally  payable,  that  is  to  say, 
payahlp^ns  mafj-pr  of  right  and  not  of  option.  Neither,  therefore,  can 
he  be  ralTprl  npnn  fn  give  nnfir-^_ofjionpayment  to  the  indorser  beTore 
the  time  when  his  right  to  demand  payment  of  the  acceptor  has  accrued, 
and  the  liabilityof  the  indorser,  consequent  on  such  refusal,  has  arisen. 
There  calinot  be  Two^  different  times  at  which  a  bill  of  exchange  be- 
comes payable.  Suppose  the  holder  had  presented  this  bill  for  payment 
at  the  time  specified  ;n  it,  and  payment  had  been  refused  by  reason  of 
the  extension  of  time  afforded  by  the  new  law,  such  presentment  would 
certainly  not  have  dispensed  with  the  necessity  of  presenting  the  bill 


444  PARTICULAR  SUBJECTS.  (Part  2 

anew,  when  the  period  of  grace  expired,  and  the  liability  of  the  ac- 
ceptors had  arisen;  and  the  omission  to  present  it  then  would  have  had 
the  effect  of  discharging  the  indorser.  If  presentment  at  the  e::pira- 
tion  of  the  time  allowed  by  the  special  law  was  necessary  to  fix  'the 
legal  liability  of  the  acceptor  and  the  indorser,  it  was  only  on  such  pre- 
sentment and  nonpayment  thereupon  that  the  bill  could  be  treated  as 
dishonoured,  or  that  notice  of  its  dishonour  could  be  efifectually  given 
so  as  to  charge  the  indorser. 

Another  ground  for  holding  that  presentment  and  notice  of  dis- 
honour at  the  earlier  period  were  not  necessary  to  preserve  the  right  of 
recourse  against  the  defendants,  as  drawers  and  indorsers,  is  to  be 
found  in  the  reasons  assigned  for  requiring  presentment  at  the  appointed 
time  and  notice  of  dishonour  immediately  on  payment  being  refused. 
The  reason  given  is,  that  the  drawer,  whom  it  is  intended  to  make  lia- 
ble, may  have  the  earliest  opportunity  of  withdrawing  his  assets  from 
the  acceptor,  or  resorting  to  such  other  remedies  against  him  as  the 
law  may  afford.  But  in  such  a  case  as  the  present,  as  the  acceptor  re- 
mains bound  to  the  holder  to  pay  the  bill  when  presented  at  the  time 
it  becomes  legally  due,  the  drawer  could  not  withdraw  from  him  the 
means  of  satisfying  that  liability,  or  take  steps  against  him  for  nonful- 
fillment of  an  obligation  not  as  yet  capable  of  being  legally  enforced. 

[The  learned  Chief  Justice  here  examined  Allen  v.  Kemble,  6  Moo, 
P.  C.  314,  Gibbs  v.  Fremont,  9  Ex.  25,  Rothchild  v.  Currie,  1  Q.  B.  43, 
and  Hirschfeld  v.  Smith,  L.  R.  1  C.  P.  340.] 

Judgment  for  the  plaintiff.®^ 

67 Accord:  France,  App.  Aix,  April  9.  1872  (D.  1872,  2.  202").  Itahj,  Cass. 
Tnrin,  March  G,  1872  fAnnali  1872,  1,  107);  Cass.  Turin,  May  20.  3879  (Anuali 
1879,  1,  405) ;  Cass.  Florence,  Jan.  16,  1873  (Annali  1873,  1,  47),  and  note ;  App. 
Rome,  June  12,  1872  (Annali  1872,  2,  2G6).  Contra:  Germany,  1  R.  O.  H.  G. 
288  (Feb.  21,  1871),  notwithstanding  the  general  rule  that  the  time  and  mode 
of  presentment,  protest,  and  notice  are  governed  with  respect  to  all  parties 
by  the  law  of  the  place  of  performance  (article  86,  Bills  of  Exchange  Ac£), 
and  the  day  of  maturity  is  determined  by  the  law  of  the  place  of  payment. 
R.  G.  Dec.  11,  1895  (6  Niemeyer,  429).  Italy,  App.  Milan,  April  16,  1872  (An- 
nali 1872,  2,  139). 

For  a  review  of  the  literature  on  this  question,  see  17  Goldschmidfs  Zeit- 
schrift  fiir  das  gesamte  Handelsrecht,  294-309;  18  Id.  G25-643. 

Ajmerican  and  English  Law. — The  law  of  the  place  of  payment  will  deter- 
mine whether  or  not  it  is  entitled  to  days  of  grace.  Ci'ibbs  v.  Adams,  13  Gray 
(Mass.)  597  (1859);  Bowen  v.  Newell,  13  N.  Y.  290,  64  Am.  Dec.  550  (1855); 
Pawcatuck  Nat.  Bank  v.  Barber,  22  R.  I.  73,  46  Atl.  1095  (1900).  And  the  time, 
manner  and  sufficiency  of  the  demand  and  protest.  Pierce  v.  Indseth,  106  U.  S. 
546,  1  Sup.  Ct.  418,  27  L.  Ed.  254  (1883) ;  Carter  v.  Union  Bank.  7  Humph. 
(Tenn.)  548,  46  Am.  Dec.  89  (1847) ;  Commercial  Bank  of  Kentucky  v.  Barks- 
dale,  36  Mo.  563  (1865) ;  Sylvester  v.  Crohan.  138  N.  Y.  494.  .34  N.  E.  273  (1893) ; 
Douglas  V.  Bank  of  Commerce,  97  Tenn.  133.  36  S.  W.  874  (1896).  Contra: 
Musson  V.  Lake,  4  How.  (U.  S.)  262,  11  L.  Ed.  967  (1&46). 

Whether  or  not  the  acceptance  of  a  bill  or  note  operates  as  payment  of  the- 
original  indebtedness  has  been  held  to  depend  upon  the  law  applicable  to  the 
original  obligation.  Tarbox  v.  Childs,  165  Mass.  408,  43  N.  E.  124  (1896).  But 
see  Minor,  Conflict  of  Laws,  §  189. 

The  English  Bills  of  Exchange  Act  provides  as  follows: 

Sec.  72.  Where  a  bill  drawn  in  one  country  is  negotiated,  accepted,  or  pay- 


Ch.   2)  OBLIGATIONS.  445 

able  in  another,  the  rights,  duties,  and  liabilities  of  the  parties  thereto  are  de- 
termined as  follows: 

(1)  The  validity  of  a  bill  as  regards  requisites  in  form  is  determined  by  the 
law  of  the  place  of  issue,  and  the  validity  as  regards  requisites  in  form  of  the 
supervening  contracts,  such  as  acceptance,  or  indorsement,  or  acceptance  su- 
pra protest,  is  determined  by  the  law  of  the  place  where  such  contract  was 
made. 

Provided  that — 

(a)  Where  a  bill  is  issued  out  of  the  United  Kingdom  it  is  not  invalid  by 
reason  only  that  it  Is  not  stamped  in  accordance  with  the  law  of  the  place  of 
issue. 

(b)  Where  a  bill,  issued  out  of  the  United  Kingdom,  conforms,  as  regards 
requisites  in  form,  to  the  law  of  the  United  Kingdom,  it  may,  for  the  pur- 
pose of  enforcing  payment  thereof,  be  treated  as  valid  as  between  all  persons 
who  negotiate,  hold,  or  become  parties  to  it  in  the  United  Kingdom. 

(2)  Subject  to  the  provisions  of  this  act,  the  interpretation  of  the  drawing, 
indorsement,  acceptance,  or  acceptance  supra  protest  of  a  bill,  is  determined 
by  the  law  of  the  place  where  such  contract  is  made. 

Provided  that  where  an  inland  bill  is  indorsed  in  a  foreign  country  the  in- 
dorsement shall  as  regards  the  payer  be  interpreted  according  to  the  law  of 
the  United  Kingdom. 

(3)  The  duties  of  the  holder^  with  respect  to  presentment  for  npppptnpce  nr 
payment  and  the^ecesslty^'^or^r  sufficiencyola  projig^  or  notice  of  dis- 
honour,  -Qr-etfagTwIse.  are-Xletermlned_by_tne  mv""orihe  place  where  the  acf 

is  done  oF]t&S-bm-lg_'^^^*^Q^^Q^^^^ 

(4)-'WBefeabillls~cira'«'n  Oht  6i  but  payable  in  the  United  Kingdom  and  the 
sum  payable  is  not  expressed  in  the  currency  of  the  United  Kingdom,  the 
amount  shall,  in  the  absence  of  some  express  stipulation,  be  calculated  ac- 
cording to  the  rate  of  exchange  for  sight  drafts  at  the  place  of  payment  on 
the  day  the  bill  is  payable. 

(5)  \viTP2'Q--a--hTtr--t^i-^h»a.wn  in  nn,^^country3ndjs  payablgjn  another._tJie^  due 
date  ther£a£-4a  dotormincd  ac£ordinj_to  the  la^of  the"""pra"ce  wherLit  is~"paS 
ajale.  ^ 

UoNTiNENTAL  LAW.— The  contracts  of  the  drawer  and  indorser  are  subject 
to  the  law  of  the  place  where  such  contracts  are  respectively  made.     France,  ^ 

Oass.  Feb.  6,  1900  (S.  1900,  1,  161),  and  note.     Germany,  44  R.  G.  153  (Oct.  4.  '^ 

1889) ;  9  R.  G.  431  (March  28,  1883).  Unless  a  different  intention  of  the  par- 
ties is  apparent.  24  R.  G.  112  (Nov.  5,  1889).  Italtj,  Cass.  Florence,  April  8. 
1895  (S.  1896,  4,  7) ;  Cass.  Florence.  Jan.  16,  1888  (15  Clunet,  735).  When  the 
parties  are  subjects  of  tlie  same  country,  however,  they  will  be  deemed  to 
have  contracted  with  reference  to  their  national  law.  Article  9,  Prel.  Disp. 
Civ.  Code ;  Cass.  Naples,  Jan.  4,  1898  (La  Legge  1898,  1,  617). 

The  law  applicable  to  each  contract  governs  the  necessity  of  presentment, 
protest,  and  notice.  Qermamj,  19  R.  O.  H.  G.  203  (Feb.  1,  1876);  24  R.  G. 
112  (Nov.  5,  1889).  France,  see  Weiss,  Traite  de  droit  international  priv6,  IV, 
442-444.    Italy,  App.  Messina,  March  15,  1891  (Foro  It.  1891,  1,  col.  574). 

The  time  and  mode  of  presentment,  protest,  and  notice,  on  the  other  hand, 
are  governed  by  the  law  of  place  of  payment  of  the  bill  or  note.  France,  Cass. 
July  5,  1843  (S.  1844,  1,  49) ;  App.  Chambery,  Nov.  25,  1864  (S.  1865,  2,  96) ;  App. 
Paris,  March  22,  1875  (3  Clunet,  361).  Germany,  article  86,  Bills  of  Exchange 
Act.  Italy,  article  58,  Com.  Code;  Cass.  Turin,  May  6,  1883  (Giurispr.  Tor. 
1883,  p.  446).     See  App.  Milan,  June  5,  1895  (25  Clunet,  595). 

See,  also,  Ch.  Brocher,  fitude  sur  la  lettre  de  change  dans  ses  rapports  avec 
le  droit  international  privg,  6  Revue  de  Droit  International,  5-56,  196-229;  F. 
P.  Contuzzi,  Die  internationalen  Wirkungen  des  Wechsels  in  Ansehung  des  y 

italienischen  Rechts  und  der  italienischen  Jurisprudenz,  1  Niemeyer,  572-582 ;  '^\/^   S? 

P.  Esperson,  Diritto  cambiale  internazionale,  Florence,  1870.  ^  y^    f^^ 


r 


446  J       tv  PARTICULAR  SUBJECTS.  (Part  2 

(D)  Carriers. 
CURTIS  V.  DELAWARE,  L.  &  W.  R.  CO. 

(Court  of  Appeals  of  New  York,  1S78.    74  N.  Y.  116,  30  Am.  Rep.  271.) 
See  ante,  p.  350,  for  a  report  of  the  case. 


MERRITT  CREAMERY  CO.  v.  ATCHISON,  T.  &  S.  F.  R.  CO. 

(Kansas  City  Court  of  Appeals,  1908.     128  Mo.  App.  420,  107  S.  W.  462.) 

Johnson,  J.  This  suit  was  brought  by  a  shipper  against  a  common 
carrier  to  recover  the  value  of  a  shipment  of  goods  lost  in  transit. 
A  jury  being  waived  by  agreement  of  parties,  the  court  found  in  favor 
of  defendant  on  the  pleadings  and  admitted  facts,  and  plaintiff  brought 
the  case  here  by  appeal. 

The  cause  of  action  pleaded  in  the  petition  is  "that  on  or  about  the 
36th  day  of  May,  1903,  the  plaintiff  delivered  to  the  defendant  for 
transportation  from  Great  Bend,  Kan.,  to  Boston,  Mass.,  and  defend- 
ant accepted  and  undertook  to  transport  25  tubs  of  butter  containing 
50  pounds  each,  25  tubs  of  butter  containing  30  pounds  each,  and 
26  tubs  of  butter  containing  20  pounds  each,  consigned  to  Lamson 
&  Co.,  Boston,  all  of  which  belonged  to  the  plaintiff;  that  the  but- 
ter was  delivered  to  plaintiff  for  shipment  in  car  M.  D.  T,  9043; 
that  it  thereupon  became  and  was  the  duty  of  defendant  as  a  com- 
mon carrier  to  safely  transport  and  deliver  said  butter  and  all  of  it 
to  consignee  at  Boston,  Mass.,  yet  said  defendant,  wrongfully  neg- 
lecting and  refusing  to  perform  its  duty  in  that  behalf,  did  fail,  neglect, 
and  refuse  to  so  transport  and  deliver  said  butter  or  any  part  thereof; 
that  said  butter  was  of  the  value  of  $529,  and  that  plaintiff  has  been 
damaged  by  said  failure  to  so  transport  and  deliver  said  butter  in  the 
sum  of  $529."  In  the  answer,  defendant  admitted  that  as  a  common 
carrier  it  received  the  butter  from  plaintiff  for  transportation  to  the 
consignee  at  Boston,  and  that  it  failed  to  make  delivery.  Two  de- 
fenses are  interposed :  First.  "That,  when  the  cars  in  which  said  but- 
ter was  being  carried  arrived  at  Argentine,  m  the  state  of  Kansas,  the 
same  were  overtaken  by  an  extraordinary  and  unprecedented  flood  of 
water,  wholly  beyond  the  control  of  this  defendant,  which  inundated 
and  overspread  the  entire  surrounding  country,  including  the  tracks 
and  yards  of  this  defendant,  and  that  flood,  which  was  an  act  of  God, 
entirely  destroyed  said  consignment  of  butter  on  May  31,  1903."  Sec- 
ond. A  statute  of  Kansas  is  pleaded  which  provides  that  an  action  of 
this  character  shall  be  barred  in  three  years  after  the  cause  of  action 
has  accrued,  and  it  is  alleged,  in  substance,  that  this  statute  should  be 
applied  to  defeat  a  recovery  by  plaintiff,  since  the  present  suit  was  not 


Ch.   2)  OBLIGATIONS.  447 

brought  until  after  three  years  had  elapsed  from  the  loss  of  the  prop- 
erty. The  following  admissions  were  made  by  the  parties  at  the  trial : 
"That  ever  since  1901  there  was  in  full  force  and  effect  in  the  state 
of  Kansas  section  4446  of  the  General  Statutes  of  Kansas,  as  set  out 
in  defendant's  amended  answer;  *  *  *  that  the  shipments  re- 
ferred to  in  the  plaintiff's  petition  were  delivered  to  the  defendant  by 
the  plaintiff'  at  Great  Bend,  Kan.,  for  shipment  to  Boston  in  May, 
1903;  that  said  defendant  carried  said  consignments  over  its  road 
from  Great  Bend,  Kan.,  to  Olathe,  Kan.,  and  at  said  point,  in  order 
to  avoid  the  high -waters  on  its  road,  detoured  said  consignments  and 
transported  them  over  the  'Frisco  Line'  to  Kansas  City,  Mo.,  and 
from  Kansas  City,  Mo.,  into  its  yards  on  its  own  line  at  Argentine, 
Kan.,  which  was  the  destination  of  the  train  in  which  this  car  was, 
which  yards  are  used  by  the  defendant  company  for  placing  all  cars 
preparatory  to  their  being  made  up  into  trains;  that  the  goods  were 
not  stopped  at  Kansas  City  at  all,  but  passed  through  to  Argentine, 
Kan.,  from  which  point  they  were  to  have  been  forwarded  to  the 
place  of  destination,  but  were  never  delivered  to  the  consignee.  It 
is  further  admitted  by  both  parties  that,  if  the  defendant  in  any  way 
failed  to  perform  any  duty  which  defendant  owed  to  the  plaintiff", 
such  failure  only  occurred  at  Argentine,  Kan.,  on  the  31st  day  of  May, 
1903."  Defendant  then  moved  for  judgment  on  the  pleadings  and  ad- 
missions. The  motion  was  sustained,  and  judgment  entered  for  de- 
fendant. 

For  the  purposes  of  the  motion  for  judgment,  defendant,  in  effeci, 
eliminated  the  defense  pleaded  in  the  answer,  that  the  property  was 
destroyed  by  the  act  of  God,  and  relied  for  defense  on  the  sole  propo- 
sition that  the  cause  of  action  accrued  at  Argentine,  Kan.,  and  was 
barred  by  the  statute  of  limitations  of  that  state,  which  under  the 
provisions  of  section  4280,  Rev.  St.  1899  [Ann.  St.  1906,  p.  2355], 
must  be  applied  in  the  courts  of  this  state.  In  this  posture  of  the  case, 
we  must  assume  as  established  the  facts  that  defendant  as  a  common 
carrier  accepted  the  shipment  at  Great  Bend,  Kan.,  for  delivery  at  Bos- 
ton, that  it  failed  to  deliver,  and  that  such  failure  was  the  result  of 
the  loss  of  the  property  at  Argentine  by  some  tortious  act  or  neglect 
of  defendant.  In  other  words,  the  motion  necessarily  is  based  on  the 
hypothesis  that  plaintiff  is  entitled  to  recover  in  this  action,  but  for 
the  bar  thereto  interposed  by  the  Kansas  statute.  It  will  be  observed 
that  the  petition  is  carefully  drawn  to  plead  a  cause  of  action  ex 
delicto  as  distinguished  from  one  in  the  nature  of  assumpsit  founded 
on  a  breach  of  the  contract  of  transportation.  The  cause  of  action 
alleged  is  the  failure  of  defendant  to  discharge  its  common-law  obliga- 
tion to  deliver  the  property  at  its  destination.  Plaintiff'  takes  the  posi- 
tion that  the  breach  of  duty  occurred  at  the  place  of  delivery,  and  con- 
sequently that  the  cause  accrued  at  that  place,  and  that  the  cause  of 
the  failure  to  deliver  (such  as  an  act  of  God  or  the  public  enemy)  is 
immaterial  as  lonof  as  it  is  not  shown  to  be  one  which  would  excuse 


Robert  L  Stone 


4:48  PARTICULAR  SUBJECTS.  (Part  2 

the  carrier  from  liability  under  the  common  law.  On  the  other  hand, 
defendant  argues  that  the  act  of  the  carrier  which  disabled  it  from 
discharging  its  common-law  duty  to  deliver  is  the  real  cause  of  action, 
and  that  the  fact  that  the  property  was  not  delivered  is  but  eviden- 
tiary, and  in  no  sense  creative  of  the  cause  of  action.  We  are  of  opin- 
ion that  plaintifif  has  the  better  of  the  argument  and  that  the  learned 
trial  judge  erred  in  sustaining  the  motion  for  judgment.  At  common 
law  the  obligation  of  a  common  carrier  with  respect  to  the  subject 
of  transportation  is  that  of  an  insurer.  It  is  liable  for  loss  of  or  dam- 
ages to  the  property  regardless  of  the  nature  of  the  cause  of  injury. 
To  this  rule  there  are  certain  exceptions.  If  the  carrier  can  show 
that  the  proximate  cause  of  its  apparent  breach  of  duty  was  some 
overwhelming  force  such  as  the  act  of  God  or  the  public  enemy,  or 
that  it  resulted  from  unavoidable  accident,  from  the  fraud  or  fault  of 
the  owner  of  the  goods,  or  from  some  inherent  defect  or  infirmity  of 
the  goods  themselves,  which  has  caused  the  injury,  it  will  be  relieved 
of  its  obligation  of  an  insurer,  and  will  not  be  held  to  respond  in  dam- 
ages for  the  loss  or  injury  sustained.  In  the  absence  of  proof  of  %uch 
excusing  fact,  the  burden  of  which  is  on  the  carrier,  the  fact  of  fail- 
ure to  deliver  of  itself  constitutes  a  cause  of  action,  and  the  plaintiff 
neither  in  his  pleading  nor  evidence  is  required  to  go  behind  that  fact 
to  show  the  specific  misconduct  that  incapacitated  the  carrier  from  de- 
livering the  goods.  The  owner  of  goods  lost  in  transportation  by  a 
cause  which  will  not  relieve  the  carrier  from  liability  may  have  sev- 
eral different  causes  of  action,  any  one  of  which  he  may  elect  to  prose- 
cute. He  may  sue,  as  we  have  said,  in  tort  for  breach  of  the  common- 
law  duty  to  deliver,  or  for  breach  of  the  contract  of  transportation, 
or  by  treating  the  carrier  as  a  mere  bailee,  may  allege  the  specific 
tortious  act  by  which  the  goods  were  lost  and  found  his  right  to  re- 
cover on  that.  The  place  where  the  goods  were  to  be  dehvered  is 
the  place  where  the  cause  originates  in  the  first-mentioned  class  of  ac- 
tions, but  the  place  where  the  tortious  act  occurred  is  that  where  the 
cause  arises  which  is  based  on  the  specific  misconduct  that  produced 
the  injury.  The  cause  pleaded  in  the  present  action  being  for  breach 
of  the  common-law  duty  to  deliver  the  goods  in  Boston,  the  statute 
of  limitations  in  force  in  Massachusetts  (under  the  provisions  of  sec- 
tion 4280,  Rev.  St.  1899  [Ann.  St.  1906,  p.  2355])  controls  the  time 
in  which  that  action  may  be  prosecuted  in  this  state,  and  the  learned 
trial  judge  erred  in  holding  that  the  Kansas  statute  should  be  applied. 
There  is  nothing  in  the  case  of  Lamar  Mfg.  Co.  v.  St.  Louis  &  S: 
F.  R.  Co.,  117  Mo.  App.  453,  93  S.  W.  851,  at  variance  with  what  we 
have  said.  It  is  true  that,  when  the  .carrier  sustains  the  burden  of 
showing  that  the  loss  or  injury  to  the  goods  was  the  direct  result  of  an 
act  of  God,  the  burden  of  proving  that  the  carrier,  notwithstanding 
the  presence  of  such  excusing  cause  was  guilty  of  concurring  negli- 
gence which  directly  contributed  to  the  loss  or  injury,  is  on  the  plain- 
tiff; but  that  rule  goes  only  to  a  matter  of  defense,  and  cannot  operate 


Ch.    2)  OBLIGATIONS.  449 

to  change  either  the  nature  or  the  situs  of  the  cause  of  action.  With 
the  defensive  matter  met  by  proof  of  concurring  neghgence,  the  cause 
still  rests  on  the  failure  of  the  carrier  to  deliver  the  goods  at  their  des- 
tination. 

But  it  is  argued  by  defendant  that  the  admission  made  by  plaintiff 
"that,  if  the  defendant  in  any  way  failed  to  perform  any  duty  which 
defendant  owed  to  the  plaintiff,  such  failure  only  occurred  at  Argen- 
tine, Kansas,  on  the  31st  day  of  May,  1903,"  made  the  tort,  if  any, 
which  occurred  at  that  place  the  ground  of  his  action.  We  do  not 
agree  with  this  contention.  Construed  in  the  light  of  the  pleadings 
and  of  the  other  facts  admitted,  we  think  it  was  not  within  the  con- 
templation of  the  parties  to  attempt  to  change  the  cause  pleaded  in 
the  petition,  and  that  the  parties  meant  only  to  agree  that,  if  the  goods 
were  lost  through  the  misconduct  of  defendant,  such  misconduct  oc- 
curred at  Argentine.  Whether  the  fact  of  the  place  where  the  goods 
were  lost  was  admitted  by  the  parties  or  was  made  a  matter  of  proof, 
it  would  be  immaterial  to  the  cause  pleaded  in  the  petition,  and,  in 
any  event,  could  be  only  material  to  prove  or  disprove  the  defensive 
issue  that  the  goods  were  destroyed  by  an  act  of  God  or  by  some  other 
cause  that  would  excuse  the  carrier  from  its  common-law  liability. 

It  follows  from  what  has  been  said  that  the  judgment  must  be  re- 
versed, and  the  cause  remanded.    All  concur. 


In  re  MISSOURI  S.  S.  CO. 
(Court  of  Appeal.  1SS9.    42  Ch.  D.  321.) 
See  ante,  p.  353,  for  a  report  of  the  case. 


GRAND  V.  LIVINGSTON. 

?w  York,  Appellate  Divisi( 
N.  Y.  Supp.  490.) 

See  ante,  p.  367,  for  a  report  of  the  case. 


(Supreme  Court  of  New  York,  Appellate  Division,  1S96.     4  App.  Div.  5S9,  38 

N.  Y.  Supp.  490.) 


PITTSBURGH,  C,  C.  &  ST.  L.  RY.  CO.  v.  SHEPPARD. 

(Supreme  Court  of  Oliio,  1897.     56  Ohio  St.  68,  46  N.  E.  61,  60  Am.  St.  Rep. 

732.) 

Action  by  Harry  D.  Sheppard  against  the  Pittsburgh,  Cincinnati, 

Chicago  &  St.  Louis  Railway  Company.     Sheppard  delivered  to  the 

Terre  Haute  &  Indianapolis  Railroad,  at  Lovington,  in  the  state  of 

Illinois,  a  car  load  of  horses  which  that  company  agreed  to  transport 

LoK.CoNF.L.— 29 


450  PARTICULAR  SUBJECTS.  (Part  2 

over  its  line  to  Indianapolis,  Ind.,  and  there  deliver  tliem  to  plaintiff 
in  error  for  carriage  to  the  city  of  Columbus,  Ohio.  The  contract 
with  the  former  company  is  in  writing,  and  contains  a  stipulation  that, 
"in  case  of  any  loss  or  damage,  the  liability  of  said  company  and  of 
any  connecting  line  shall  not  exceed  $100  per  head."  The  horses  were 
safely  delivered  to  the  plaintiff  in  error,  at  Indianapolis,  and  received 
by  it  in  good  condition ;  but,  while  being  transported  over  its  line 
in  this  state,  a  defective  wheel  of  one  of  the  cars  in  the  train  gave 
way,  in  consequence  of  which  one  of  the  horses  was  killed,  and  the 
others  were  injured.  Sheppard  brought  suit  in  the  court  of  common 
pleas  of  Franklin  county  against  the  plaintiff  in  error  for  damages, 
alleging  that  his  loss  was  occasioned  by  the  company's  negligence. 
The  company  denied  negligence  on  its  part,  and  pleaded  the  stipula- 
tion in  the  contract,  above  set  forth,  as  a  limitation  on  its  liability,  aver- 
ring that  the  contract  was  made  in  the  state  of  Illinois,  where,  under 
the  law  of  that  state,  such  stipulation  is  valid.  Issue  was  joined  on 
the  allegations  of  the  answer,  and  on  the  trial  evidence  was  given  by 
both  sides  tending  to  prove  what  the  law  of  Illinois  on  the  subject  was 
when  the  contract  was  made.  The  plaintiff  recovered  more  than  the 
amount  limited  by  the  contract,  and  that  judgment  was  affirmed  by 
the  circuit  court.  The  railway  company  prosecutes  error  here  to  ob- 
tain the  reversal  of  both  judgments. 

WiLUAMS,  C.  J.^^  It  is  not  contended  there  is  sufficient  ground  for 
disturbing  the  judgments  below,  for  lack  of  evidence  tending  to  prove 
that  the  negligence  charged  against  the  defendant  was  the  cause  of  the 
plaintiff's  loss;  but  it  is  claimed  the  evidence  did  not  establish  gross 
or  willful  negligence,  and  that  under  the  law  of  Illinois,  where  the 
contract  for  the  transportation  of  the  horses  was  made,  it  was  com- 
petent for  a  common  carrier  of  goods  to  limit  his  liability,  by  special 
agreement,  except  as  against  his  negligence  of  that  character.  And 
the  principal  contention  of  counsel  for  the  plaintiff  in  error  is  that  the 
trial  court  erred  in  its  charge  concerning  the  law  of  Illinois  on  that 
subject;  the  complaint  being  that  the  charge,  in  substance,  was  a 
statement  of  the  rule  established  in  this  state,  instead  of  that  which 
obtains  in  Illinois.  The  parties  put  in  evidence  several  decisions  of 
the  Supreme  Court  of  that  state  to  prove  the  law  of  the  state,  and  coun- 
sel in  argument  seek  to  maintain  different  interpretations  of  those 
decisions  favorable  to  their  respective  clients.  But  if  the  rights  of 
the  parties  are  to  be  determined  by  the  laws  of  this  state,  and  not  by 
those  of  Illinois,  the  charge  was  not  erroneous  or  prejudicial,  though 
given  as  the  law  of  that  state.  There  is  nothing  to  show  that  any 
traffic  arrangement  existed  between  the  two  railroad  companies,  nor 
any  agency  or  authority  of  one  to  contract  for  the  other;  and  assum- 
ing that  the  plaintiff  in  error,  by  accepting  the  horses  from  the  other 

08  A  part  of  the  opinion  not  relating  to  tlie  Conflict  of  Laws  lias  been 
omitted. 


Ch,   2)  OBLIGATIONS.  451 

company,  and  undertaking  to  transport  them  over  its  line,  became  a 
party  to  the  contract  with  the  plaintiff  below,  it  did  so  at  Indianapolis, 
and  its  contract  was  to  carry  the  horses  from  that  point  to  their  des- 
tination. No  part  of  its  performance  of  the  contract  was  to  take  place 
in  the  state  of  Illinois;  and,  if  the  carriage  of  the  property  over  that 
part  of  its  road  which  is  located  in  Indiana  could  be  considered  as  a 
performance  having  the  effect  of  making  the  rights  of  the  parties  un- 
der the  contract  subject  to  the  laws  of  that  state,  none  differing  from 
those  of  this  state  was  pleaded  or  proven,  and  there  is  no  presumption 
that  they  were  different. 

But,  if  the  law  of  Indiana  were  shown  to  be  the  same  as  that  of 
Illinois  is  claimed  to  be,  it  would  not  be  the  law  governing  this  con- 
tract. We  understand  the  rule  to  be  that  where  a  contract  is  made 
in  one  state,  to  be  performed  in  part  in  another,  and  an  action  is 
brought  for  a  breach  of  that  part  of  the  contract,  the  rights  of  the  par- 
ties must  be  determined  according  to  the  law  of  the  latter  state.  Story, 
Cont.  §  655;  Barter  v.  Wheeler,  49  N.  H.  9,  6  Am.  Rep.  434.  It 
is  apparent,  however,  from  the  face  of  this  contract  that  it  was  to  be 
wholly  performed  in  this  state.  The  property  was  to  be  transported 
to  Columbus,  where  the  consignee  was  entitled  to  receive  it  from  the 
carrier.  The  latter  was  bound  to  deliver  it  at  that  place.  The  contract 
could  be  performed  by  the  company  nowhere  else.  Carrying  the  prop- 
erty through  a  portion  of  the  state  of  Indiana  did  not  constitute  per- 
formance. That  was  merely  a  means  of  enabling  the  company  to  per- 
form by  delivery  of  the  property  at  its  destination.  And,  the  con- 
tract being  silent  as  to  the  time  and  place  of  payment  of  the  freight, 
it  was  payable  at  the  time  of  the  delivery  of  the  property  to  the  con- 
signee, and  necessarily  at  the  place  of  delivery;  so  that  the  place  of 
performance  by  both  parties  to  the  contract  was  in  this  state.  And 
the  rule  is  that,  when  it  appears  from  a  contract  made  in  one  state  or 
country  that  it  is  to  be  performed  in  another,  the  presumption  is  that 
it  was  entered  into  with  reference  to  the  laws  of  the  latter,  and  those 
laws  determine  its  validity,  obligation,  and  effect.  Kanaga  v.  Tay- 
lor, 7  Ohio  St.  142,  70  Am.  Dec.  62.  Other  cases  on  this  subject  are 
largely  collected  in  the  briefs  of  counsel.  It  is  also  the  well-settled 
law  of  this  state  that  a  common  carrier  cannot  by  special  agreement 
relieve  himself  from  the  consequences  of  his  own  negligence,  nor 
limit  his  liability  for  losses  resulting  therefrom.  This  rule  is  laid 
down  in  Welsh  v.  Pittsburg,  Ft.  W.  &  C.  R.  Co.,  10  Ohio  St.  65,  75 
Am.  Dec.  490,  as  follows :  "A  railroad  company,  acting  as  a  common 
carrier  of  live  stock,  cannot,  by  special  contract,  procure  exemption 
from  responsibility  for  losses  arising  from  its  own  neglect  of  the  du- 
ties incident  to  such  employment.  Such  common  carrier  is  liable  for 
damage  resulting  from  defective  and  unsafe  cars  or  vehicles  of  trans- 
portation, notwithstanding  an  express  contract  to  the  contrary."  And 
see  Davidson  v.  Graham,  2  Ohio  St.  132 ;  Graham  v.  Davis,  4  Ohio 
St.  362,  62  Am.  Dec.  285;    Cleveland,  P.  &  A.  R.  Co.  v.  Currar.i.  19 


452  PARTICULAR  SUBJECTS.  (Part  2 

Ohio  St.  3,  3  Am.  Rep.  362;  Cincinnati,  H.  &  D.  &  D.  &  M.  R.  Co. 
V.  Pontius,  19  Ohio  St.  231,  2  Am.  Rep.  391 ;  Knowlton  v.  Erie  Ry. 
Co.,  19  Ohio  St.  263,  2  Am.  Rep.  395;  United  States  Express  Co.  v. 
Backman,  28  Ohio  St.  144;  Express  Co.  v.  Schwab,  53  Ohio  St.  659, 
44  N.  E.  1135. 

We  find  no  error  in  the  charge  of  the  court  that  could  operate  to 
the  prejudice  of  the  defendant  below.     *     *     *  '''' 


DYKE  V.  ERIE  RY.  CO. 

(Court  of  Appeals  of  New  York,  1871.    45  N.  Y.  113,  6  Am.  Rep.  43.) 
See  post,  p.  480,  for  a  report  of  the  case. 


HUGHES  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1902.    202  Pa.  222,  51  Atl.  990,  63  L.  R.  A. 
513,  97  Am.  St.  Rep.  713.) 

Potter,  J.  The  plaintiffs  in  this  case  were  the  owners  of  a  valuable 
horse,  which  was  shipped  by  their  agent  from  Albany,  N.  Y.,  to  Cyn- 
wyd.  Pa.  The  contract  for  transportation  was  made  in  Albany  with 
the  New  York  Central  Railroad,  acting  for  itself  and  connecting  car- 
riers. The  bill  of  lading  provided  that  "no  carrier  shall  be  liable  for 
loss  or  damage  not  occurring  on  its  own  road,  or  its  portion  of  the 
through  route."  The  horse  was  carried  safely  by  the  initial  carrier  to 
the  end  of  its  line,  and  delivered  to  the  defendant  company,  by  whom 
it  was  brought  to  Philadelphia.  At  this  point  the  horse  was  badly  in- 
jured by  the  negligence  of  defendant's  servants,  and  the  injuries  thus 
received  are  the  foundation  of  this  action.  The  defendant  admitted  lia- 
bility, but  claimed  that  the  plaintiff  was  not  entitled  to  recover  in  ex- 
cess of  $100.  In  support  of  this  claim,  it  relied  upon  a  printed  form 
of  a  shipping  contract,  which  was  signed  by  plaintiff's  agent  at  the 
time  of  shipment,  and  retained  by  the  carrier.  This  contract  contained 
a  stipulation  that  the  liability  of  the  initial  carrier  and  any  connecting 
carrier  should  be  limited,  in  case  of  loss  or  damage  to  a  horse  or  mule, 
whether  through  negligence  or  otherwise,  to  an  amount  not  exceeding 

6  9  It  is  held  in  a  number  of  jurisdictions  that,  since  a  contract  of  carriage 
through  several  states  is  to  be  in  part  performed  in  the  state  where  the  con- 
tract is  made,  the  law  of  such  state  should  govern.  McDaniel  v.  Chicago  & 
N.  W.  R.  Co.,  24  Iowa,  412  (1808);  Illinois  Cent.  R.  Co.  v.  Beebe,  174  111,  13, 
50  N.  E.  1019,  43  L.  R.  A.  210,  60  Am.  St.  Rep.  253  (1898) ;  Brockway  v,  Ameri- 
can Express  Co.,  171  Mass.  158,  50  N.  E.  620  (1898). 

The  same  principle  has  been  ai)j)lied  to  other  contracts  partially  to  be  per- 
formed in  the  state  where  made  and  partiall.y  in  other  states.  Morgan  v. 
New  Orleans,  M.  &  T.  R.  Co.,  2  Woods  (U.  S.)  244,  Fed.  Cas.  No.  9,804  (1870) ; 
Bartlett  v.  Collins,  109  Wis.  477,  85  N.  W.  703,  83  Am.  St.  Rep.  928  (1901). 


Ch.   2)  OBLIGATIONS.  453 

$100  each.  At  the  trial  the  court  below  declined  to  charge  the  jury 
that  such  a  limitation  of  the  amount  of  the  damages  was  lawful  in  this 
case.  The  jury,  under  the  evidence,  found  a  verdict  for  $9,900 — the 
full  value  of  the  horse. 

The  refusal  of  the  court  to  charge  that  the  contract  of  shipment, 
limiting  the  liability  for  negligence,  was  valid  and  binding  upon  the 
plaintiff,  is  here  assigned  as  error.  It  is  conceded  that  this  contract  is 
valid  under  the  law  of  New  York,  and  that,  if  the  horse  had  been 
injured  while  in  course  of  transportation  through  that  state,  the  plain- 
tiffs would  have  been  limited  to  the  sum  of  $100.  It  is  also  conceded 
that  such  a  contract,  made  in  Pennsylvania,  for  transportation  between 
points  within  the  state,  would  be  void,  as  against  the  settled  policy  of 
this  state.  The  question  is  not  an  open  one  with  us.  Nor  does  it  mat- 
ter whether  the  attempt  be  to  limit  the  liability,  as  in  Ruppel  v.  Alle- 
gheny Valley  Ry.,  167  Pa.  166,  31  Atl.  478,  46  Am.  St.  Rep.  666,  or  to 
claim  exemption  entirely  from  liability,  as  in  Willock  v.  Pennsylvania 
R.  Co.,  166  Pa.  184,  30  Atl.  948,  27  L.  R.  A.  228,  45  Am.  St.  Rep.  674. 
But  because  the  contract  was  made  in  New  York,  to  be  performed 
partly  in  New  York  and  partly  in  Pennsylvania,  it  is  contended  that 
the  law  of  New  York  should  govern  the  case.  It  may  be  noted  here 
that  while  the  contract  contains  an  acknowledgment  that  Grady  had 
the  option  to  ship  the  horse  at  a  higher  rate,  with  increased  liability, 
yet,  as  a  matter  of  fact,  no  such  offer  was  made.  The  evidence  shows 
that  the  freight  agent  at  Albany  did  not  know  the  amount  of  the  char- 
ges, and  the  blanks  for  the  amounts  were  not  filled  in.  The  case  of 
Burnett  v.  Pennsylvania  R.  Co.,  176  Pa.  45,  34  Atl.  972,  seems  to  be 
decisive  of  the  question  now  before  us.  In  that  case  the  plaintiff  was 
an  employe  of  defendant  at  Trenton,  N.  J.  He  applied  for  and  obtain- 
ed free  transportation  from  Trenton  to  Elmira,  N.  Y.  He  received  two 
passes — one,  from  Trenton  to  Philadelphia,  which  was  not  in  evidence, 
and  the  other,  an  employe's  trip  pass,  from  Philadelphia  to  Elmira — 
by  the  terms  of  which  he  assumed  all  risks  of  accident.  He  was  in- 
jured at  Harrisburg,  Pa.,  through  the  admitted  negligence  of  the  de- 
fendant's employes.  It  was  proved  at  the  trial  that  under  the  laws  of 
New  Jersey  the  contract  by  which  the  plaintiff,  in  consideration  of  free 
transportation,  assumed  the  risk  of  accident,  was  valid,  and  that  in  that 
state  he  could  not  recover ;  and  it  was  conceded  by  the  defendant  that 
in  Pennsylvania  the  decisions  are  otherwise,  and  that  such  a  contract 
will  not  relieve  a  common  carrier  from  responsibility  for  negligence. 
There,  as  in  this  case,  the  contract  was  valid  in  the  state  where  made. 
The  transportation  was  safely  performed  into  this  state,  and  the  injury 
occurred  within  this  state  through  the  negligence  of  the  carrier.  It  was 
held  that  the  responsibility  of  the  defendant  was  to  be  determined  by 
the  law  of  the  state  where  the  contract  was  being  performed,  and  where 
the  negligence  occurred,  and  recovery  was  allowed.  In  the  present  case 
the  facts  are  more  strongly  against  the  defendant,  in  that  it  is  not  the 
initial  carrier  under  the  contract,  and  the  stipulation  upon  the  part  of 


454  PARTICULAR  SUBJECTS.  ,  (Part  2 

each  carrier  was  against  liability  for  damages  not  occurring  on  its  por- 
tion of  the  through  route.  In  Fairchild  v.  Philadelphia,  W.  &  B.  R.  Co., 
148  Pa.  537,  24  Atl.  79,  there  was  a  contract  for  the  transportation  of 
a  horse  from  Washington,  D.  C,  through  Pennsylvania,  to  Harkimus, 
N.  J.  It  was  injured  by  the  negligence  of  the  defendant  while  in  Balti- 
more, Md.  The  contract  contained  a  stipulation  limiting  the  value  of 
the  horse  to  $100.  Suit  was  brought  to  recover  damages  for  the  injury. 
The  court  below  held  the  contract  to  be  valid,  and,  under  instructions, 
a  verdict  was  rendered  for  $105.50,  and  judgment  entered  thereon. 
This  judgment  was  affirmed;  this  court  saying,  in  a  per  curiam,  "This 
written  contract  was  made  in  the  District  of  Columbia,  and  is  to  be 
interpreted  by  the  lex  loci  contractus."  Forepaugh  v.  Delaware,  L.  & 
W.  R.  Co.,  128  Pa.  217,  18  Atl.  503,  5  L.  R.  A.  508, 15  Am.  St.  Rep.  672. 
If,  however,  in  the  performance  of  the  contract,  the  horse  had  been  car- 
ried into  Pennsylvania,  and  it  had  been  injured  in  this  state,  the  prin- 
ciple set  forth  in  Burnett  v.  Railroad  Co.,  supra,  would,  no  doubt,  have 
been  applied,  and  the  limitation  of  liability  held  void.  In  the  Fairchild 
Case  nothing  is  said  about  the  law  of  Maryland,  where  the  injury  occur- 
red, though,  as  a  matter  of  fact,  the  limitation  of  liability  was  valid  in 
that  state,  as  appears  in  Brehme  v.  Dinsmore,  25  Md.  328.  The  Fair- 
child  Case,  when  properly  understood,  is  authority  only  for  the  propo- 
sition that  a  contract  containing  a  limitation  of  liability,  made  in  a  state 
where  it  is  valid,  will  be  enforced  in  this  state,  where  an  injury  occurs 
in  the  course  of  transportation  through  a  state  where  such  a  contract  is 
not  contrary  to  public  policy.  It  is  only  an  application  of  the  doctrine  of 
Forepaugh  v.  Delaware,  L.  &  W.  R.  Co.,  128  Pa.  217,  18  Atl.  503,  5 
L.  R.  A.  508,  15  Am.  St.  Rep.  672,  to  a  slightly  differing  state  of  facts 
The  reference  to  Hart  v.  Pennsylvania  R.  Co.,  112  U.  S.  331,  5  Sup. 
Ct.  151,  28  L.  Ed.  717,  could  only  have  been  to  show  the  law  of  the 
District  of  Columbia;  for  in  Grogan  v.  Adams  Express  Co.,  114  Pa. 
523,  7  Atl.  134,  60  Am.  Rep.  360,  this  court  expressly  refused  to  fol- 
low the  Hart  Case. 

A  distinction  may  well  be  made  between  contracts  of  a  general  na- 
ture, and  those  of  common  carriers  of  goods  through  several  states. 
Much  stress  is  laid  in  the  brief  of  appellants  upon  the  opinion  of  Justice 
Bradley  in  Morgan  v.  New  Orleans,  M.  &  T.  R.  Co.,  2  Woods  (U.  S.) 
244,  Fed.  Cas.  No.  9,804.  The  contract  in  that  case  was  made  in  New 
York,  to  be  performed,  in  an  important  part,  there,  and  in  part  by  the 
building  of  a  railroad  in  Louisiana.  Another  important  part  was  to  be 
performed  in  Alabama,  and  perhaps  other  important  parts  in  other 
states.  The  court  held  that,  where  a  contract  is  to  be  performed  in 
several  jurisdictions,  there  could  be  no  presumption  that  the  parties  had 
in  view  the  laws  of  each  of  these  jurisdictions,  as  the  law  that  was  to 
govern  the  contract,  and  therefore  held  that  it  was  governed  by  the  law 
of  New  York,  where  it  was  made.  But  it  will  be  noticed  that  the  case 
did  not  involve  the  law  of  common  carriers,  but  only  a  contract  relating 
to  a  matter  about  which  the  parties  were  free  to  contract,  and  against 


Ch.    2)  OBLIGATIONS.  455 

which  there  was  no  pubhc  policy  of  any  state.  The  inquiry  was  there- 
fore properly  confined  to  ascertaining  the  intention  of  the  parties  to  the 
agreement.  But  a  contract  for  the  carriage  of  goods  is  not  one  as  to 
which  parties  are  entirely  free  to  contract.  Judge  Sulzberger,  in  his 
charge  in  this  case,  aptly  said :  "There  are,  however,  limitations  upon 
the  right  of  contract.  There  is  a  certain  field  of  human  activity  over 
which  the  state  assumes  supreme  control  by  virtue  of  its  sovereignty, 
and  when  the  state  declares  its  policy,  which  we'  call  'public  policy,' 
upon  these  questions,  then  the  right  of  private  contract  is  utterly 
abolished  to  that  extent."  It  will  not  do,  therefore,  to  apply  to  the  con- 
tracts of  common  carriers  all  the  principles  that  may  apply  to  other 
contracts.  When  courts  declare  a  contract  void  as  against  public  policy, 
they  are  not  declaring  the  intention  of  the  parties,  as  in  the  ordinary 
case,  but  are  acting  under  the  obligation  of  the  higher  law,  which  re- 
quires the  enforcement  of  that  which  is  for  the  public  good.  Where  a 
contract  containing  a  stipulation  limiting  liability  for  negligence  is  made 
in  one  state,  but  with  a  view  to  its  performance  by  transportation 
through  or  into  one  or  more  other  states,  we  see  no  reason  why  it  should 
not  be  construed  in  accordance  with  the  law  of  the  state  where  its  neg- 
ligent breach,  causing  injury,  occurs.  If  such  a  contract  comes  under 
construction  in  a  state  like  Pennsylvania,  whose  policy  prohibits  such 
exemption,  and  the  injury  has  occurred  in  a  state  where  the  contract  is 
valid,  the  stipulation  will  be  enforced,  as  in  Forepaugh  v.  Railroad  Co. 
and  in  Fairchild  v.  Railroad  Co.  But  if  the  injury  has  taken  place  with- 
in its  limits,  it  will  declare  the  contract  null  and  void,  as  in  Burnett 
V.  Railroad  Co.  In  the  Fairchild  Case,  as  the  injury  occurred  in  Mary- 
land, this  court  enforced  the  law  of  that  state.  If  the  injury  to  the  horse 
had  been  delayed  until  in  the  course  of  the  journey  it  had  reached 
Pennsylvania,  our  own  law  of  public  policy  would  have  controlled. 
This  principle  is  maintained  in  Barter  v.  Wheeler,  49  N.  H.  9,  6  Am. 
Rep.  434.  In  that  case  the  transportation  was  from  Toledo,  Ohio,  to 
Concord,  N.  H.  The  goods  were  lost  on  their  passage  through  New 
York,  and  the  court  said  that,  if  it  is  to  "be  executed  partially  in  New 
York,  we  perceive  no  reason  why,  in  respect  to  that  part,  the  law  of 
that  state  should  not  govern ;  and  such  is  the  doctrine  laid  down  in 
Story,  Cont.  §  655."  To  the  same  effect  is  Pittsburg,  C,  C.  &  St.  L. 
R.  Co.  V.  Sheppard,  56  Ohio  St.  69,  46  N.  E.  61,  60  Am.  St.  Rep.  732. 
This  principle  involves  no  greater  difficulty,  as  to  proof,  than  the  at- 
tempt to  recover  under  a  limitation  of  liability.  In  either  case,  negli- 
gence is  a  fact  to  be  proven  as  to  time  and  place,  as  any  other  fact. 

Careful  consideration  of  the  contract  and  of  the  evidence  shows  that 
the  contract  in  this  case  was  not  entire,  either  as  to  the  obligation  of 
the  carrier  to  transport,  or  of  the  shipper  to  pay  the  freight.  The  New 
York  Central  Railroad  made  no  contract  for  itself  beyond  its  own  lines. 
It  acted  as  agent  only  for  the  connecting  carrier.  It  is  the  same  as 
though  each  carrier  had  separately  agreed  to  transport  over  its  own 
line.    And  the  freight  charges  were  shown  to  be  made  up  of  two  dis- 


456  ■  PARTICULAR  SUBJECTS.  (Part  2 

tinct  sums;  one  being  the  amount  from  Albany  to  Jersey  City,  and 
the  other  from  Jersey  City  to  Cynwyd.  No  case  has  come  under  no- 
tice, directly  deciding  that  such  a  contract  is  severable.  But  in  Wells 
V.  Thomas,  37  Mo.  17,  72  Am.  Dec.  228,  the  ruling  is  such  as  to  indicate 
that,  in  the  opinion  of  the  court,  the  bill  of  lading  issued  in  that  case, 
covering  lines  of  several  carriers,  was  not  an  entire  contract. 

The  third  assignment  of  error  suggests  that  the  entry  of  judgment 
is  in  conflict  with  the  interstate  commerce  act  of  Congress.  This  seems 
to  be  an  afterthought,  as  there  is  no  indication  in  the  record  that  this 
question  was  raised  or  considered  in  the  court  below.  It  is  not  ap- 
parent how  the  act  can  have  any  application  to  this  case.  It  contains 
nothing  bearing  upon  the  validity  of  a  contract  limiting  the  liability  of 
a  railroad  for  loss  or  injury  caused  by  negligence.  The  object  of  the 
act  seems  to  be  to  secure  continuous  carriage  and  uniform  rates,  and 
to  compel  the  furnishing  of  equal  facilities.  We  cannot  see  that  the 
entry  of  judgment  in  this  case  interferes  in  any  way  with  the  legitimate 
exercise  of  interstate  commerce. 

Upon  the  case  as  a  whole,  there  is  nothing  to  show  any  bad  faith 
upon  the  part  of  the  shipper.  He  applied  for  the  transportation  of  his 
horse  upon  a  special  car,  and  loaded  him  thereon,  together  with  the 
traps  and  harness  and  a  special  attendant.  There  was  no  concealment, 
nor  any  misrepresentation  as  to  value.  The  shipper  paid  the  carrier  the 
amount  asked  of  him.  It  does  not  appear  that  any  bargain  was  made 
in  advance  for  a  freight  rate ;  nor  was  there  any  reason  why  the  full 
rate,  sufficient,  in  the  opinion  of  the  carrier,  to  cover  the  risk  of  trans- 
portation, should  not  have  been  charged  and  collected.  The  shipper 
should  not  be  asked  to  pay  for  insurance  against  the  negligence  of  the 
employes  of  the  carrier.  If  protection  of  that  nature  was  desired,  the 
carrier  was  at  liberty  to  procure  it  for  itself,  and  at  its  own  expense. 
It  must  be  assumed,  also,  that  both  shipper  and  carrier  knew  the  law 
of  Pennsylvania,  and  had  it  in  view  when  the  contract  was  made.  The 
facts  were  submitted  to  the  jury  in  a  charge  which  clearly  and  correct- 
ly stated  the  public  policy  of  this  state  with  regard  to  the  question  un- 
der consideration. 

The  assignments  of  error  are  overruled,  and  the  judgment  is  affirmed. 

MiTCHELi,  and  Brown,  JJ.,  dissent. 


WESTERN  UNION  TELEGRAPH  CO.  v.  LACER. 

(Court  of  Appeals  of  Kentucky,  1906.     93  S.  W.  34,  29  Ky.  Law  Rep.  379,  5 

L.  R.  A.  [N.  S.]  751.) 

O'ReaRj  J.  A  telegram  was  sent  from  Booneville,  Ind.,  to  appel- 
lee, then  at  Louisville,  Ky.,  on  August  19,  1904,  as  follows:  "J^^^^^ 
Lacer,  Enterprise  Hotel,  Louisville,  Ky.  Napoleon  failing,  can't  live, 
doctor  says.     L.  Lacer."     The  Napoleon  referred  to  was  appellee's 


Ch.    2)  OBLIGATIONS.  457 

brother.  He  was  then  very  ill  at  Booneville,  Ind.,  and  died  on  August 
21,  1904.  If  the  telegram  had  been  delivered  promptly,  appellee,  who 
was  at  the  Enterprise  Hotel  in  Louisville,  could  have  reached  his 
brother's  bedside  before  his  death.  But  the  telegram  was  not  deliver- 
ed till  August  25,  1904,  six  days  after  it  was  sent,  and  four  days  after 
the  death  of  appellee's  brother  referred  to  therein.  It  is  admitted  that 
appellant  had  not  a  direct  line  of  wire  from  Booneville,  Ind.,  to  Louis- 
ville, Ky.  The  message  had  to  be  sent  to  Evansville,  Ind.,  where  it  was 
transferred  from  one  of  appellant's  lines  to  another,  and  thence  for- 
warded to  Louisville.  In  taking  it  off  the  Booneville  line  and  trans- 
ferring to  the  Louisville  Hne,  some  of  appellant's  agents  misread  the 
name  Lacer,  and  sent  it  as  Koer,  so  that,  when  it  was  delivered  to 
the  Enterprise  Hotel  at  Louisville,  there  being  no  one  there  by  the 
name  of  Jake  Koer,  it  was  returned  to  appellant's  receiving  office  in 
Louisville  where  it  was  found  by  appellee  at  the  date  last  mentioned 
above.  Appellee  brought  this  suit  in  'the  Jefferson  circuit  court  to  re- 
cover damages  for  his  mental  suffering  occasioned  by  appellant's  breach 
of  its  contract  in  failing  to  deliver  the  message  expeditiously,  as  it 
had  agreed  to  do. 

The  action  is  maintainable  under  the  laws  of  this  state  (Chapman  v. 
Western  Union  Telegraph  Co.,  90  Ky.  268,  13  S.  W.  880 ;  Western 
Union  Telegraph  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  92 
Am.  St.  Rep.  3G6),  unless,  as  appellant  contends  it  is,  the  cause  of  ac- 
tion accrued  in  Indiana,  where  such  damages  are  not  recoverable,  which 
brings  us  to  an  analysis  of  the  cause  of  action  sued  on..  Appellant  is 
engaged  in  a  service  of  the  public  for  hire.  Its  business  is  that  of  a 
common  carrier  of  messages.  It  contracted  with  the  sender  of  the  dis- 
patch in  this  case,  for  the  benefit  of  appellee,  that  it  would  promptly 
and  expeditiously  deliver  the  exact  message  received  by  it  to  the  person 
at  the  place  addressed.  The  relation  is  one  growing  out  of  contract. 
The  breach  by  appellant  gives  the  sendee  of  this  message  the  right  to 
recover  damages  within  the  legal  contemplation  of  the  parties  when  it 
was  entered  into,  which,  since  the  Chapman  Case,  supra,  must  be  deem- 
ed to  have  included  mental  anguish  occasioned  by  a  failure  to  deliver 
it.  Appellant  seeks  to  avoid  the  breach  of  the  contract  by  alleging,  so 
as  to  avoid  the  effect  of  the  Kentucky  rule  on  this  subject,  that  the 
breach  occurred  by  reason  of  its  negligence  wholly  in  the  state  of  In- 
diana, where  the  contract  was  made.  The  cases  of  Cleveland,  C,  C.  & 
St.  L.  Ry.  Co.  V.  Druien,  118  Ky.  237,  80  S.  W.  778,  66  L.  R.  A.  275, 
and  Adams  Express  Co.  v.  Walker,  119  Ky.  121,  83  S.  W.  106,  67  L. 
R.  A.  412,  are  particularly  relied  on  as  supporting  its  position  in  this 
contention.  Each  of  these  cases  arose  out  of  a  contract  to  ship  prop- 
erty from  another  state  into  the  state  of  Kentucky  by  a  common  car- 
rier operating  in  both  the  states.  In  each  case  it  was  held  that  the 
breach  of  such  a  contract  made  in  another  state,  would  give  to  the 
shipper  or  consignee  a  right  of  action  therefor  in  the  state  where  the 
breach  occurred,  which  would  be  governed  by  the  laws  of  such  lat- 


458  PARTICULAR  SUBJECTS.  (Part  2 

ter  state.  From  this  it  is  argued  that,  as  it  is  admitted  that  the  negh- 
geiit  act  of  appellant  in  this  case,  by  which  the  dispatch  was  altered 
in  the  name  of  the  addressee  and  sender,  occurred  wholly  in  Indiana, 
the  cause  of  action  therefor  arose  then  in  that  state,  and  the  rights  of 
the  parties  growing  out  of  the  contract  must  be  controlled  by  the  laws 
of  that  state.  This  contention  is,  we  think,  a  misconception  of  the  na- 
ture of  the  action  in  this  case.  It  is  for  the  breach  of  a  contract,  caus- 
ed, it  is  true,  by  a  tortious  act  of  appellant.  A  contract  made  in  one 
state,  to  be  performed  partly  where  made  and  partly  in  another  state, 
should  be  construed,  in  fixing  a  liability  for  its  breach,  according  to 
the  laws  of  the  jurisdiction  where  the  breach  occurred;  for  it  must 
be  conclusively  presumed  that  the  parties  entered  into  it  with  such  in- 
tent, purposing  that  in  its  execution,  as  well  as  in  its  construction, 
the  laws  of  each  state  where  it  was  being  performed  were  to  be  read 
into  it.    This  is  the  precise  point  decided  in  the  Druien  Case,  supra. 

But,  argues  appellant,  the  performance  in  this  case  was  in  course 
of  execution  in  Indiana,  where  the  contract  was  made,  when  it  was 
breached ;  i.  e.,  when  appellant  negligently  altered  the  address  so  as 
to  cause  it  to  miscarry.  The  thing  contracted  for  in  this  case  was, 
not  to  carry  property,  but  to  do  a  service.  The  service  which  was 
contracted  for  was  to  expeditiously  deliver  the  correct  message  to  the 
addressee  at  the  point  addressed.  See  extended  opinion  in  Howard 
V.  Western  Union  Telegraph  Co.,  119  Ky.  625,  86  S.  W.  982.  Tran- 
scribing it  into  the  characters  of  the  Morse  code,  or  otherwise,  tem- 
porarily rendering  it  tmintelligible  to  ordinary  persons  including  ap- 
pellee, would  not  affect  the  contract  or  any  rights  of  the  parties,  so 
long  as  it  was  finally  and  in  due  time  correctly  communicated  to  the 
person  intended.  The  message  consisted  of  intelligence  to  be  trans- 
mitted partly  by  means  of  electrically  conducted  sounds,  and  partly 
by  messenger,  so  that  it  would  quickly  reach  the  person  designated 
by  the  contract.  Appellant  undertook  to  do  this.  It  was  a  single  un- 
dertaking, the  performance  of  which  was  to  take  place  in  Kentucky. 
The  delivery  of  the  message,  the  communication  of  the  intelligence 
to  the  person  named,  was  the  thing  to  be  done.  The  contract  in  suit 
is  not  different  in  this  feature  of  its  nature  than  if  A.  undertook  to 
go  in  person  from  Booneville,  Ind.,  to  Louisville,  Ky.,  and  there  find 
B.  at  a  named  point,  and  communicate  to  him  a  message  for  the  sender. 
Whether  A.  en  route  forgot  the  message,  or  misremembered  the  name 
of  the  person  to  whom  it  was  to  be  delivered,  would  not  be  material 
as  affecting  his  liability  in  the  undertaking.  If  he  in  fact  found  the 
person  and  told  him  the  true  message,  the  contract  would  be  satis- 
fied. But  his  failure  to  deliver  would  be  a  breach  of  his  undertaking, 
which  could  not  occur  till  he  failed  to  deliver  at  the  place  and  within 
the  time  contracted  for.  That  appellant,  a  corporation,  sends  its  mes- 
sages by  electric  current,  instead  of  personal  messengers,  does  not 
alter  the  nature  of  the  service,  so  far  as  its  being  an  undertaking  to 
do  a  single  thing.    The  element  of  expedition  is  the  principal  material 


Ch.    2)  OBLIGATIONS.  459 

difference  between  the  service  undertaken  in  this  case  and  the  one 
imagined  in  the  ilkistration.  In  our  opinion  it  is  materially  different 
from  the  nature  of  a  contract  to  carry  a  chattel  and  deliver  it.  As 
was  said  in  the  Druien  Case,  that  contract  (to  carry  a  lot  of  horses) 
"was  not  only  to  deliver.  It  was  also  to  safely  carry.  It  was  broken 
:;:  *  *  when  the  horses  were  killed.  A  cause  of  action  upon  the 
contract  instantly  arose.  A  suit  could  have  been  maintained  there 
that  moment  for  its  breach."  Obviously,  if  a  carrier  undertook  to 
carry  a  lot  of  horses  from  a  point  in  Illinois  and  deliver  them  to  a 
point  in  Kentucky,  if  the  horses  were  killed  by  the  carrier  in  Illinois, 
it  could  never  do  anything  more  toward  executing  its  undertaking. 
The  thing  it  was  to  carry  and  deliver  no  longer  had  an  existence.  The 
chattel  consigned  to  the  carrier's  safe-keeping  had  been  destroyed 
by  it.  Hence  the  consignee  could  then  say  that  the  undertaking  was 
that  moment  broken.  But  in  the  case  at  bar  the  thing  to  be  trans- 
mitted was  formless,  impalpable,  a  message  of  words  conveying  in- 
telligence, a  mental  picture  of  a  fact,  to  be  reproduced  by  words  ut- 
tered. It  could  not  be  hurt,  much  less  destroyed,  in  its  transmission. 
Nothing  but  the  failure  to  deliver  in  due  time  could  affect  its  value 
to  the  sendee.  There  cannot  be  a  segregation  of  liability  on  the  under- 
taking. It  is  whole,  single,  and  susceptible  of  becoming  fixed  only 
in  the  final  act  contemplated.  A  telegraphic  message  is  not  property 
which  can  be  destroyed,  though  undoubtedly  it  is  susceptible  of  such 
interest  akin  to  a  property  right,  that  the  sender  and  sendee  would  be 
entitled  to  be  protected  in  its  privacy.  We  are  of  opinion  that  appel- 
lant's liability  on  the  contract  in  suit  is  to  be  measured  by  the  laws 
of  this  state,  where  the  breach  of  the  contract  occurred.  Such  was  the 
ruling  of  the  circuit  court. 
Judgment  affirmed.  i 

t^v 

LIVERPOOL  &  G.  W.  STEA^I  CO.  v.  PHENTX  INS.  CO. 

(Supreme  Court  of  the  United  States,  1889.     129  U.  S.  397,  9  Sup.  Ct.  4G9,  32 

L.  Ed.  788.) 

Gray^  J."^"  This  is  an  appeal  by  a  steamship  company  from  a  de- 
cree rendered  against  it  upon  a  libel  in  admiralty,  "in  a  cause  of  ac- 
tion arising  from  breach  of  contract,"  brought  by  an  insurance  com- 
pany, claiming  to  be  subrogated  to  the  rights  of  the  owners  of  goods 
ship^3ed  on  board  theJVtontana,  one  of_the_appellant's  steam^hipsT^ 
New  York,  to  be_^aTried_to_Xaverpool,  and  lost  or  damaged  by  her 
stran3iTlg',  because:,^  the  neglig€ftce-~of-4ter--«ia£t£ii^and^_offic£rs>ZIn' 
Holyhead  ba^^on  the  coast-xxf- Wales,  bejore  reaching  her  destination. 
In  behatf^f  the  appellant,  it  was  contended"  that  tEe"T6'ss  was  caused 
by  perils  of  the  sea,  without  any  negligence  on  the  part  of  master 

7  0  The  stiitement  of  facts  and  portions  of  the  opinion  have  been  omitted. 


460 


PARTICULAR  SUBJECTS. 


(Part  2 


and  officers;  that  the  appellant  was  not  a  common  carrier;  that  it 
was  exempt  from  liability  by  the  terms  of  the  bills  of  lading;  and 
that  the  libelant  had  not  been  subrogated  to  the  rights  of  the  owners 
of  the  goods.     *     *     * 

The  question  of  negligence  is  fully  and  satisfactorily  discussed  in 
the  opinion  of  the  District  Court  reported  in  The  Montana,  17  Fed. 
377,  and  in  that  of  the  Circuit  Court,  reported  in  22  Blatchf.  372,  22 
Fed.  715.  It  is  largely,  if  not  wholly,  a  question  of  fact,  the  deci- 
sion of  which  by  the  Circuit  Court  cannot  be  reviewed  here ;  and,  so 
far  as  it  can  possibly  be  held  to  be  or  to  involve  a  question  of  law, 
it  is  sufficient  to  say  that  the  circumstances  of  the  case,  as  found  by 
the  Circuit  Court,  clearly  warrant,  if  they  do  not  require,  a  court  or 
jury  charged  with  the  duty  of  determining  issues  of  fact,  to  find 
that  the  stranding  was  owing  to  the  negligence  of  the  officers  of  the 
ship.     *     *     * 

We  are  then  brought  to  the  consideration  of  thg  p^rincipal  question 
in  the  case,  namelyj_jJTe_yalidity  and  effecLjlLth^^^'^^^"^^  jji^p^HThTTT 
of  ia3mg~^)r>5rhichthe]a^  to  exempt  itself  from_aTr 

responsibility^TorToss  or  damage  by  perils  oITtTie  sea,  arising  from 
negligence-Tjnhe" master  "amTTfew  of  the_ship.  The  question  ^ap- 
pears to'us'lcn5e''siifetaMrati7-^term^  by  the  judgment  of  this 
court  in  New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  357,  21  L. 
Ed.  627.     *     *     * 

It  was  argued  for  the  appellant  that  the  law  of  New  York,  the  lex 
loci  contractus,  was  settled  by  recent  decisions  of  the  Court  of  Appeals 
of  that  state  in  favor  of  the  right  of  a  carrier  of  goods  or  passengers, 
by  land  or  water,  to  stipulate  for  exemption  from  all  liability  for  his 
own  negligence.  Mynard  v.  Syracuse,  B.  &  N.  Y.  R.  Co.,  71  N.  Y. 
180,  27  Am.  Rep.  28 ;  Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71,  36  Am. 
Rep.  579.  But  on  this  subject,  as  on  any  question  depending  upon 
mercantile  law  and  not  upon  local  statute  or  usage,  it  is  well  settled 
that  the  courts  of  the  United  States  are  not  bound  by  decisions  of  the 
courts  of  the  state,  but  will  exercise  their  own  judgment,  even  when 
their  jurisdiction  attaches  only  by  reason  of  the  citizenship  of  the 
parties,  in  an  action  at  law  of  which  the  courts  of  the  state  have  con- 
current jurisdiction,  and  upon  a  contract  made  and  to  be  performed 
within  the  state.  New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  357, 
3G8,  21  L.  Ed.  627;  Myrick  v.  Michigan  Cent.  R.  Co.,  107  U.  S.  102, 
1  Sup.  Ct.  425,  27  L.  Ed.  325 ;  Carpenter  v.  Providence  Washington 
Ins.  Co.,  16  Pet.  495,  511,  10  E.  Ed.  1044;  Swift  v.  Tyson,  16  Pet. 
1,  10  L.  Ed.  865 ;  Brooklyn  City  &  Newtown  R.  Co.  v.  National  Bank 
of  the  Republic,  102  U.  S.  14,  26  L.  Ed.  61;  Burgess  v.  Seligman, 
107  U.  S.  20,  33,  2  Sup.  Ct.  10,  27  L.  Ed.  359 ;  Smith  v.  Alabama,  124 
U.  S.  465,  478,  8  Sup.  Ct.  564,  31  L.  Ed.  508 ;  Bucher  v.  Chesire  R. 
Co.,  125  U.  S.  555,  583,  8  Sup.  Ct.  974,  31  L.  Ed.  795.  The  decisions 
of  the  state  courts  certainly  cannot  be  allowed  any  greater  weight  in 
the  federal  courts  when  exercising  the  admiralty  and  maritime  juris- 


Ch.  2) 


OBLIGATIONS. 


diction  exclusively  vested  in  them  by  the  Constitution  of  the  United 
States. 

It  was  also  argued  in  behalf  of  the  appellant  that  the  validity  and 
effect  of  this  contract,  to  be  performed  principally  upon  the  high  seas, 
should  be  governed  by  the  general  maritime  law,  and  that  by  that  law 
such  stipulations  are  valid.  To  this  argument  there  are  two  answers: 
First.  There  is  not  shown  to  be  any  such  general  maritime  law.  The 
industry  of  the  learned  counsel  for  the  appellant  has  collected  arti- 
cles of  codes,  decisions  of  courts,  and  opinions  of  commentators  in 
France,  Italy,  Germany,  and  Holland,  tending  to  show  that,  by  the 
law  administered  in  those  countries,  such  a  stipulation  would  be  valid. 
But  those  decisions  and  opinions  do  not  appear  to  have  been  based 
on  general  maritime  law,  but  largely,  if  not  wholly,  upon  provisions 
or  omissions  in  the  codes  of  the  particular  country,  and  it  has  been 
said  by  many  jurists  that  the  law  of  France,  at  least,  was  otherwise. 
See  2  Pard.  Droit  Com.  No.  542 ;  4  Goujet  &  Meyer  Diet.  Droit  Com. 
(2d  Ed.)  Voiturier,  Nos.  1,  81 ;  2  Troplong  Droit  Civil,  Nos.  894,  910. 
942,  and  other  books  cited  in  Peninsular  &  Oriental  Co.  v.  Shand,  3 
Moore,  P.  C.  (N.  S.)  272,  278,  285,  286;  25  Laurent  Droit  Civil  Fran- 
^ais,  No.  532 ;  Mellish,  L.  J.,  in  Cohen  v.  Railway  Co.,  L.  R.  2  Exch. 
Div.  253,  257.  Second.  The  general  maritime  law  is  in  force  in  this 
country,  or  in  any  other,  so  far  only  as  it  has  been  adopted  by  the 
laws  or  usages  thereof;  and  no  rule  of  the  general  maritime  law 
(if  any  exists)  concerning  the  validity  of  such  a  stipulation  as  that 
now  before  us  has  ever  been  adopted  in  the  United  States  or  in  Eng- 
land, or  recognized  in  the  admiralty  courts  of  either.  The  Lotta- 
wanna,  21  Wall.  558,  22  L.  Ed.  654;  The  Scotland,  105  U.  S.  24, 
29,  33,  26  L.  Ed.  1001;  The  Belgenland,  114  U.  S.  355,  369,  5  Sup. 
Ct.  860,  29  L.  Ed.  152 ;  The  Harrisburg,  119  U.  S.  199,  7  Sup.  Ct. 
140,  30  L.  Ed.  358;  The  Hamburg,  2  :\Ioore,  P.  C.  (N.  S.)  289,  319, 
Brown.  &  L.  253,  272;  Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  115,  123,  124, 
6  Best  &  S.  100,  134,  136 ;  The  Gretano,  L.  R.  7  Prob.  Div.  137,  143. 

It  was  argued  in  this  court,  as  it  had  been  below,  tliat  as  the  con- 
tract was  to  be  chiefly  performed  on  board  of  a  British  vessel,  and 
to  be  finally  completed  in  Great  Britain,  and  the  damage  occurred  in 
Great  Britain,  the  case  should  be  determined  by  the  British  law,  and 
that  by  that  law  the  clause  exempting  the  appellant  from  liability  for 
losses  occasioned  by  the  negligence  of  its  servants  was  valid.     *     *     * 

It  appears  by  the  cases  cited  in  behalf  of  the  appellant,  and  is  hardly 
denied  by  the  appellee,  that  under  the  ^existing  law  ni ^Qre^f  Brit.au]- 
as  declared  bvthe-iate.st  de^cisjonsjTl  "^J^^-f^^"^^"^)  common  rqrnVrs  b}^ 
land  or  sea,  excegt_sofar  as  they  are__controlled  by  the,  provisions  of 
the  railway  anH""canal  traffic  act  of  1854rare  permitted  to  pvempt  thein- 
selves  by  express  cogtTggffliflnr]^ponsijii1jty_for_^ 
by  negligence,  ot  thjir  servants.  The  Duero,  L.  R.  2  Adm.  &  Ecc. 
393;  Taubman  v.  Paci^TCoI  26  Law  T.  (N.  S.)  704;  Steel  v.  Steam- 
Ship  Co.,  L.  R.  3  App.  Cas.  72;    Railway  Co.  v.  Brown,  L.  R.  8 


462  PARTICULAR  SUBJECTS,  (Part   2 

App.  Cas.  703.  Xt_£nsy -^thereiore  be  assumed  that  the  sj;jpulation 
now_hi  question,  though,  invahd  Jbv_our  la^;^_wouldj3e._yalid 
ingJo31l£Uaw_^f_Gr€al_Eritain.  The  general  rule  as  to  what  law 
should  prevail,  in  case  of  a  conflict  of  laws  concerning  a  private  con- 
tract, was  concisely  and  exactly  stated  before  the  declaration  of  in- 
dependence by  Lord  Mansfield  (as  reported  by  Sir  William  Black- 
stone,  who  had  been  of  counsel  in  the  case),  as  follows:  "The  gen- 
eral rule,  established  ex  comitate  et  jure  gentium,  is  that  the  place 
wdiere  the  contract  is  made,  and  not  where  the  action  is  brought,  is  to 
be  considered  in  expounding  and  enforcing  the  contract.  But  this  rule 
admits  of  an  exception,  where  the  parties  (at  the  time  of  making  the 
contract)  had  a  view  to  a  different  kingdom."  Robinson  v.  Bland,  1 
W.  Bl.  234,  256,  258,  2  Burrows,  1077,  1078. 

The  recent  decisions  by  eminent  English  judges,  cited  at  the  bar, 
so  clearly  affirm  and  so  strikingly  illustrate  the  rule,  as  applied  to 
cases  more  or  less  resembling  the  case  before  us,  that  a  full  statement 
of  them  will  not  be  inappropriate. 

In  Peninsular  &  Oriental  Co.  v.  Shand,  3  Moore,  P.  C.  (N.  S.) 
272,  290,  Lord  Justice  Turner,  delivering  judgment  in  the  Privy  Coun- 
cil, reversing  a  decision  of  the  Supreme  Court  of  Mauritius,  said: 
"The  general  rule  is  that  the  law  of  the  country  where  a  contract  is 
made  governs  as  to  the  nature,  the  obligation,  and  the  interpretation 
of  it.  The  parties  to  a  contract  are  either  the  subjects  of  the  power 
there  ruling,  or  as  temporary  residents  owe  it  a  temporary  allegiance. 
In  either  case,  equally,  they  must  be  understood  to  submit  to  the  law 
there  prevailing,  and  to  agree  to  its  action  upon  their  contract.  It 
is,  of  course,  immaterial  that  such  agreement  is  not  expressed  in  terms. 
It  is  equally  an  agreement  in  fact,  presumed  de  jure,  and  a  foreign 
court  interpreting  or  enforcing  it  on  any  contrary  rule  defeats  the  in- 
tention of  the  parties,  as  well  as  neglects  to  observe  the  recognized 
comity  of  nations."  It  was  accordingly  held  that  the  law  of  England, 
and  not  the  French  law  in  force  at  Mauritius,  governed  the  validity 
and  construction  of  a  contract  made  in  an  English  port  between  an 
English  company  and  an  English  subject  to  carry  him  thence  by  way 
of  Alexandria  and  Suez  to  Mauritius,  and  containing  a  stipulation 
that  the  company  should  not  be  liable  for  loss  of  passengers'  baggage, 
which  the  court  in  Mauritius  had  held  to  be  invalid  by  the  French  law. 
3  Moore,  P.  C.  (N.  S.)  278.  Lord  Justice  Turner  observed  that  it  was 
a  satisfaction  to  find  that  the  Court  of  Cassation  in  France  had  pro- 
nounced a  judgment  to  the  same  effect,  under  precisely  similar  cir- 
cumstances, in  the  case  of  a  French  officer  taking  passage  at  Hong 
Kong,  an  English  possession,  for  Marseilles  in  France,  under  a  like 
contract,  on  a  ship  of  the  same  company,  which  was  wrecked  in  the 
Red  Sea,  owing  to  the  negligence  of  her  master  and  crew.  Julien  v. 
Peninsular  &  Oriental  Co.,  imperfectly  stated  in  3  Moore,  P.  C.  (N.  S.) 
282,  note,  and  fully  reported  in  75  Journal  du  Palais,  225  (18G4). 

The  case  of  Lloyd  v.  Guibert,  6  Best  &  S.  100,  L.  R.  1  Q.  B.  115, 


Ch.    2)  OBLIGATIONS.  4G3 

decided  in  the  Queen's  Bench  before,  and  in  the  Exchequer  Chamber 
after,  the  decision  in  the  Privy  Council  just  referred  to,  presented 
this  pecuHar  state  of  facts :  A  French  ship  owned  by  Frenchmen  was 
chartered  by  the  master,  in  pursuance  of  his  general  authority  as  such, 
in  a  Danish  West  Indies  island,  to  a  British  subject,  who  knew  her  to 
be  French,  for  a  voyage  from  St.  Marc,  in  Hayti,  to  Havre,  London, 
or  Liverpool,  at  the  charterer's  option,  and  he  shipped  a  cargo  from 
St.  Marc  to  Liverpool.  On  the  voyage,  the  ship  sustained  damage 
from  a  storm  which  compelled  her  to  put  into  a  Portuguese  port. 
There  the  master  lawfully  borrowed  money  on  bottomry,  and  repaired 
the  ship,  and  she  carried  her  cargo  safe  to  Liverpool.  The  bondhold- 
er proceeded  in  an  English  court  of  admiralty  against  the  ship,  freight, 
and  cargo,  which  being  insufificient  to  satisfy  the  bond,  he  brought  an 
action  at  law  to  recover  the  deficiency  against  the  owners  of  the  ship; 
and  they  abandoned  the  ship  and  freight  in  such  a  manner  as  by  the 
French  law  absolved  them  from  liability.  It  was  held  that  the  French 
law  governed  the  case,  and  therefore  the  plaintiff  could  not  recover. 
It  thus  appears  that  in  that  case  the  question  of  the  intent  of  the  par- 
ties was  complicated  with  that  of  the  lawful  authority  of  the  master ; 
and  the  decision  in  the  Queen's  Bench  was  put  wholly  upon  the  ground 
that  the  extent  of  his  authority  to  bind  the  ship,  the  freight,  or  the 
owners  was  limited  by  the  law  of  the  home  port  of  the  ship,  of  wdiich 
her  flag  was  sufficient  notice.  Lloyd  v.  Guibert,  6  Best  &  S.  100. 
That  decision  was  in  accordance  with  an  earlier  one  of  Mr.  Justice 
Story,  in  Pope  v.  Nickerson,  3  Story,  465,  Fed.  Cas.  No.  11,274,  as 
well  as  with  later  ones  in  the  Privy  Council,  on  appeal  from  the  High 
Court  of  Admiralty,  in  which  the  validity  of  a  bottomry  bond  has  been 
determined  by  the  law  prevailing  at  the  home  port  of  the  ship,  and 
not  by  the  law  of  the  port  where  the  bond  was  given.  The  Karnak, 
L.  R.  2  P.  C.  505,  512;  The  Gatano,  L.  R.  7  Prob.  Div.  137.  See, 
also,  The  Woodland,  7  Ben.  110,  118,  Fed.  Cas.  No.  17,976;  Id.,  14 
Blatchf.  499,  503,  Fed.  Cas.  No.  17,977,  and  104  U.  S.  180,  26  L.  Ed. 
705. 

The  judgment  in  the  Exchequer  Chamber  in  Lloyd  v.  Guibert  was 
put  upon  somewhat  broader  ground.  Mr.  Justice  Willes,  in  delivering 
that  judgment,  said:  "It  is  generally  agreed  that  the  law  of  the  place 
where  the  contract  is  made  is  prima  facie  that  which  the  parties  in- 
tended, or  ought  to  be  presumed  to  have  adopted,  as  the  footing  upon 
which  they  dealt,  and  that  such  law  ought  therefore  to  prevail  in  the 
absence  of  circumstances  indicating  a  different  intention,  as,  for  in- 
stance, that  the  contract  is  to  be  entirely  performed  elsewhere,  or  that 
the  subject-matter  is  immovable  property  situated  in  another  country, 
and  so  forth ;  which  latter,  though  sometimes  treated  as  distinct  rules, 
appear  more  properly  to  be  classed  as  exceptions  to  the  more  general 
one,  by  reason  of  the  circumstances  indicating  an  intention  to  be  bound 
by  a  law  different  from  that  of  the  place  where  the  contract  is  made ; 
which  intention  is  inferred  from  the  subject-matter  and  from  the  sur- 


i64  PARTICULAR  SUBJECTS.  (Part  2 

rounding  circumstances,  so  far  as  they  are  relevant  to  construe  and  de- 
termine the  character  of  the  contract."  L.  R.  1  Q.  B.  132,  123,  6  Best 
&  S.  133. 

It  was  accordingly  held,  conformably  to  the  judgment  in  Peninsular 
&  Oriental  Co.  v.  Shand,  above  cited,  that  the  law  of  England,  as  the 
law  of  the  place  of  final  performance  or  port  of  discharge,  did  not 
govern  the  case,  because  it  was  "manifest  that  what  was  to  be  done 
at  Liverpool  was  but  a  small  portion  of  the  entire  service  to  be  ren- 
dered, and  that  the  character  of  the  contract  canrtot  be  determined 
thereby,"  although  as  to  the  mode  of  delivery  the  usages  of  Liver- 
pool would  govern.  L-  R.  1  Q.  B.  125,  126,  6  Best  &  S.  137.  It  was 
then  observed  that  the  law  of  Portugal,  in  force  where  the  bottomry 
bond  was  given,  could  not  affect  the  case;  that  the  law  of  Hayti  had 
not  been  mentioned  or  relied  upon  in  argument;  and  that,  "in  favor 
of  the  law  of  Denmark,  there  is  the  cardinal  fact  that  the  contract  was 
made  in  Danish  territory,  and,  further,  that  the  first  act  done  towards 
performance  was  weighing  anchor  in  a  Danish  port;"  and  it  was 
finally,  upon  a  view  of  all  the  circumstances  of  the  case,  decided  that 
the  law  of  France,  to  which  the  ship  and  her  owners  belonged,  must 
govern  the  question  at  issue.  The  decision  was,  in  substance,  that  the 
presumption  that  the  contract  should  be  governed  by  the  law  of  Den- 
mark, in  force  where  it  was  made,  was  not  overcome  in  favor  of  the 
law  of  England  by  the  fact  that  the  voyage  was  to  an  English  port 
and  the  charterer  an  Englishman,  nor  in  favor  of  the  law  of  Portu- 
gal by  the  fact  that  the  bottomry  bond  was  given  in  a  Portuguese 
port;  but  that  the  ordinary  presumption  was  overcome  by  the  con- 
sideration that  French  owners  and  an  English  charterer,  making  a 
charter-party  in  the  French  language  of  a  French  ship,  in  a  port  where 
both  were  foreigners,  to  be  performed  partly  there  by  weighing  anchor 
for  the  port  of  loading,  (a  place  where  both  parties  would  also  be 
foreigners,)  partly  at  that  port  by  taking  the  cargo  on  board,  prin- 
cipally on  the  high  seas,  and  partly  by  final  delivery  in  the  port  of 
discharge,  must  have  intended  to  look  to  the  law  of  France  as  gov- 
erning the  question  of  the  liability  of  the  owner  beyond  the  value  of 
the  ship  and  freight. 

[After  commenting  upon  Chartered  Bank  of  India  v.  Netherlands 
S.  N.  Co.,  9  Q.  B.  D.  118,  10  O.  B.  D.  521,  Jacobs  v.  Credit  Lyonnais, 
12  Q.  B.  D.  589,  Watts  v.  Camors,  115  U.  S.  353,  6  Sup.  Ct.  91,  29 
L.  Ed.  406,  Pope  v.  Nickerson,  3  Story  (U.  S.)  465,  Fed.  Cas.  No. 
11,274,  Morgan  v.  New  Orleans,  M.  &  T.  R.  Co.,  2  Woods  (U.  S.) 
244,  Fed.  Cas.  No.  9,804,  Plale  v.  New  Jersey  Steam  Nav.  Co.,  15 
Conn.  539,  39  Am.  Dec.  398,  Dyke  v.  Erie  Ry.,  45  N.  Y.  113,  6  Am. 
Rep.  43,  McDaniel  v.  Chicago  &  N.  W.  Ry.  Co.,  24  Iowa,  4il2,  Penn- 
sylvania Co.  V.  Fairchild,  69  111.  260,  Brown  v.  Camden  &  A.  R.  Co., 
83  Pa.  316,  Curtis  v.  Delaware,  L.  &  W.  R.  Co.,  74  N.  Y.  116,  30 
Am.  Rep.  271,  Barter  v.  Wheeler,  49  N.  H.  9,  6  Am.  Rep.  434,  and 


Ch.  2) 


OBLIGATIONS. 


465 


Gray  v.  Jackson,  51  N.  H.  9,  12  Am.  Rep,  1,  the  learned  Justice  con- 
tinued as  follows :] 

This  review  of  the  principal  cases  demonstrates  that,  according  to 
the  great  preponderance,  if  not  the  uniform  concurrence,  of  authority, 
the  general  rule  that  the  nature^  the  obligation,  and  thejnterpretation 
of  a  contract  are  to^be_goyerned_by_  the  law  of  the^Iace  where  it  is 
made,  unless  tlie  parties  at  the  time  of  malaiTg"ItTiave~some  oTlTefTaw 
in  view7""^quires[[^  contracT  of  affreightment,  made  in  one  country 
betwgEn~cTtizens  or  residents  thereof,  and  the  pertormance  "of  which 
begins  tb^r^T^  be_goyerned  b3riHe~law  ot  that  country,  unlessjme 
partiesr  VvhetTjntering  into_tl2e  contract,__clearly  manijest_a  mutual 
intentJ^trthaTTr  shall  be  governed~by  tlTcH^aw  of  some  other  country. 
Theff^es  not  appear  to  us  to  be  anything  liT  either  ot  the  bills  of 
lading  in  the  present  case  tending  to  show  that  the  contracting  par- 
ties looked  to  the  law  of  England,  or  to  any  other  law  than  that  of  the 
place  where  the  contract  was  made.  The  bill  of  lading  for  the  bacon 
and  hams  was  made  and  dated  at  New  York,  and  signed  by  the  ship's 
agent  there.  It  acknowledges  that  the  goods  have  been  shipped  "in 
and  upon  the  steamship  called  'Montana,'  now  lying  in  the  port  of 
New  York,  and  bound  for  the  port  of  Liverpool,"  and  are  to  be  deliv- 
ered at  Liverpool.  It  contains  no  indication  that  the  owners  of  the 
steamship  are  English,  or  that  their  principal  place  of  business  is  in 
England,  rather  than  in  this  country.  On  the  contrary,  the  only  de- 
scription of  the  line  of  steamships,  or  of  the  place  of  business  of  their 
owners,  is  in  a  memorandum  in  the  margin,  as  follows :  "Guion  Line. 
United  States  ]\Iail  Steamers.  New  York:  29  Broadway.*  Liver- 
pool :  11  Rumford  St."  No  distinction  is  made  between  the  places 
of  business  at  New  York  and  at  Liverpool,  except  that  the  former  is 
named  first.  The  reservation  of  liberty,  in  case  of  an  interruption  of 
the  voyage,  "to  tranship  the  goods  by  any  other  steamer,"  would  per- 
mit transhipment  into  a  vessel  of  any  other  line,  English  or  American. 
And  general  average  is  to  be  computed,  not  by  any  local  law  or  usage, 
but  "according  to  York-Antwerp  rules,"  which  are  the  rules  drawn 
up  in  1864  at  York,  in  England,  and  adopted  in  1877  at  Antwerp,  in 
Belgium,  at  international  conferences  of  representatives  of  the  more 
important  mercantile  associations  of  the  United  States,  as  well  as  of 
the  maritime  countries  of  Europe.    Lown.  Av.  (3d  Ed.)  app.  O. 

The  contract  being  made  at  New  York,  the  shipowner  .liaving  a 
place  of_business_there7and  tfie~sliipper  being  an  American,  both  par- 
ties must  be  presmoed^o  have  submitted  themselves  to  tlTe  law  Lhere 
prevailing,  and  to  have^agreedtoits  action~upon  their  contract.  Tlie 
contract  is~T^ngle~one,  and"  its  principal  object,  the" transportation 
of  the  goods,  is  one  continuous  act,  to  begin  in  the  port  of  New  York, 
to  be  chiefly  performed  on  the  high  seas,  and  to  end  at  the  port  of 
Liverpool.  The  facts^thatJJis^oods  are  to  be^pli'-t^PrpH  at  T^iY^rjv-|ni 
and  the  frpip-Vit  anH  pri'mQgp_fh^vrf>fr.i->^  payable  there  in  sterling  cur- 
rency,  go"not  niaJ^£UJb£._£oatra£t~arr"EngTT^^  to  the 

LoR.CoNF.D.— 30  "  '  ' 


46G  PARTICULAR  SUBJECTS.  (Part  2 

English  law  the  question  of  the  liability  of  the  carrier— ioii-ilifi_neg- 
ligence  oftHelrT^stci  and  trewln  the  course  of  the  voyage.  Peninsular 
&  Oriental  Co.  v.  Shand,  Lloyd  v.  Guibert,  and  Chartered  Bank  of 
India  v.  Netherlands  Steam  Navigation  Co.,  before  cited. 

There  is  even  less  ground  for  holding  the  three  bills  of  lading  of 
the  cotton  to  be  English  contracts.  Each  of  them  is  made  and  dated 
at  Nashville,  an  inland  city,  and  is  a  through  bill  of  lading,  over  the 
Louisville  &  Nashville  Railroad  and  its  connections,  and  by  the  Wil- 
liams and  Guion  Steamship  Company,  from  Nashville  to  Liverpool  ; 
and  the  whole  freight  from  Nashville  to  Liverpool  is  to  be  "at  the 
rate  of  fifty-four  pence  sterling  per  100  lbs.  gross  weight."  It  is 
stipulated  that  the  liability  of  the  Louisville  &■  Nashville  Railroad 
and  its  connections  as  common  carriers  "terminates  on  delivery  of 
the  goods  or  property  to  the  steamship  company  at  New  York,  when 
the  liability  of  the  steamship  commences,  and  not  before;"  and  that 
"the  property  shall  be  transported  from  the  port  of  New  York  to 
the  port  of  Liverpool  by  the  said  steamship  company,  with  liberty 
to  ship  by  any  other  steamship  or  steamship  line."  And  in  the  mar- 
gin is  this  significant  reference  to  a  provision  of  the  statutes  of  the 
United  States,  applicable  to  the  ocean  transportation  only :  "Attention 
of  shippers  is  called  to  the  act  of  Congress  of  1851:  'Any  person  or 
persons  shipping  oil  of  vitriol,  unslacked  lime,  inflammable  matches, 
[or]  gunpowder,  in  a  ship  or  vessel  taking  cargo  for  divers  persons 
on  freight,  without  delivering  at  the  time  of  shipment  a  note  in  writ- 
ing, expressing  the  nature  and  character  of  such  merchandise,  to  the 
master,* mate,  or  officer,  or  person  in  charge  of  the  loading  of  the  ship 
or  vessel,  shall  forfeit  to  the  United  States  one  thousand  dollars.'  "  Act 
March  3,  1851,  c.  43,  §  7,  9  St.  636 ;  Rev.  St.  §  4288.  It  was  argued 
that  as  each  bill  of  lading,  drawn  up  and  signed  by  the  carrier  and 
assented  to  by  the  shipper,  contained  a  stipulation  that  the  carrier 
should  not  be  liable  for  losses  by  perils  of  the  sea  arising  from  the 
negligence  of  its  servants,  both  parties  must  be  presumed  to  have 
intended  to  be  bound  by  that  stipulation,  and  must  therefore,  the 
stipulation  being  void  by  our  law  and  valid  by  the  law  of  England, 
have  intended  that  their  contract  should  be  governed  by  the  English 
law;  and  one  passage  in  the  judgment  in  Peninsular  &  Oriental  Co. 
V.  Shand  gives  some  color  to  the  argument.  3  Moore,  P.  C.  (N.  S.) 
291.  But  the  facts  of  the  two.  cases  are  quite  different  in  this  respect. 
In  that  case,  effect  was  given  to  the  law  of  England,  where  the  con- 
tract was  made,  and  both  parties  were  English,  and  must  be  held  to 
have  known  the  law  of  their  own  country.  In  this  case,  the  contract 
was  made  in  this  country,  between  parties  one  residing  and  the  other 
doing  business  here ;  and  the  law  of  England  is  a  foreign  law,  which 
the  American  shipper  is  not  presumed  to  know.  Both  parties  or  either 
of  them  may  have  supposed  the  stipulation  to  be  valid;  or  both  or 
either  may  have  known  that  by  our  law,  as  declared  by  this  court,  it 
was  void.     In  either  aspect,  there  is  no  ground  for  inferring  that  the 


Ch.    2)  OBLIGATIONS.  40)7 

shipper,  at  least,  had  any  intention,  for  the  purpose  of  securing-  its 
validity,  to  be  governed  by  a  foreign  law,  which  he  is  not  shown,  and 
cannot  be  presumed,  to  have  had  any  knowledge  of. 

Our  conclusion  on  the  principal  question  in  the  case  may  be  summed 
up  thus :  Each  of  the  bills  of  lading  is  an  American,  and  not  an  Eng- 
lish, contract,  and,  so  far  as  concerns  the  obligation  to  carry  the  goods 
in  safety,  is  to  be  governed  by  the  American  law,  and  not  by  the  law, 
municipal  or  maritime,  of  any  other  country.  By  our  law,  as  declared 
by  this  court,  the  stipulation  by  which  the  appellant  undertook_jto_ex::, 
empt  itself  from  1iahi1ify_Fnr  fhe  negligence  of  its  servants  is  ronfrnrv 
to  public  policy rarid^erefore_ void ;  ^nd  the  loss  of  the  goods  waS-^ 
breach  TJfTfte'contract,  for  which  the  shipper  might  maintain  a  suit 
again5tTlTe''carrie5r"TTiisT)eing  so,  the  fact  that  the  place  where  the 
ve^seFwent  ashore,  in  consequence  of  the  negligence  of  the  master 
and  officers  in  the  prosecution  of  the  voyage,  was  upon  the  coast  of 
Great  Britain,  is  quite  immaterial.  This  conclusion  is  in  accordance 
with  the  decision  of  Judge  Brown  in  the  District  Court  of  the  United 
States  for  the  Southern  District  of  New  York  in  The  Brantford  City, 
29  Fed.  373,  which  appears  to  us  to  proceed  upon  more  satisfactory 
grounds  than  the  opposing  decision  of  Mr.  Justice  Chitty,  sitting  alone 
in  the  Chancery  Division,  made  since  this  case  was  argued,  and,  so 
far  as  we  are  informed,  not  reported  in  the  Law  Reports,  nor  affirmed 
or  considered  by  any  of  the  higher  courts  of  Great  Britain.  In  re 
Missouri  Steam-Ship  Co.,  58  Law  T.  (N.  S.)  377. 

The  present_case__do€S--iiot  require  us  to  determine  wliat_effect  the 
courts  of  the--XIiiited_States  jhould_g'iyeJj>  this  rnntract^-4£at_ha3~e"x- 
pressly  provided  that  any  question  arising  under  ij_should  be  governed 
by  the  law  of  England. '   "^    *     * 

Tlie  result  of  these  considerations  is  that  the  decree  of  the  Circuit 
Court  is  in  all  respects  correct  and  must  be  affirmed.'^ ^ 

7iAs  to  the  liability  of  carriers  in  general,  see  G3  L.  R,  A.  513-534;  E.  Par- 
melee  Prentice,  The  Right  to  Engage  in  Interstate  Commerce,  17  Harv.  Law 
Rev.  30-40. 

Although  the  stipulation  in  a  contract  of  carriage  be  valid  under  the  law 
of  the  place  where  it  was  entered  into,  the  courts  of  anotlier  state  may  de- 
cline to  enforce  it  on  the  ground  of  public  policy.  The  Kensington,  183  U. 
S.  263,  22  Sup.  Ct.  102.  46  L.  Ed.  190  (1902).  So,  a  fortiori,  in  the  face  of  an 
express  statute.  See  Harter  Act  Feb.  13.  1893,  c.  105,  27  Stat.  445  (U.  S. 
Comp.  St.  1901,  p.  2946) :  Knott  v.  Botany  Worsted  Mills,  179  U.  S.  G9.  21  Sup. 
Ct.  30,  45  L.  Ed.  90  (1900).  But  it  has  been  held  that  where  no  part  of  the 
contract  is  to  be  performed  in  this  country  such  stipulation  will  be  given 
effect.  The  Fri,  154  Fed.  334,  83  C.  C.  A.  205  (1907).  Two  District  Court  de- 
cisions have  upheld  such  stipulations,  although  a  part  of  the  contract  was  to 
be  performed  in  the  United  States,  where  the  injury  occurred  in  the  country 
under  the  law  of  which  such  stipulation  is  valid.  Tlie  Trinacria  (D.  C.)  42 
Fed.  863  (1890) ;  Baetjer  v.  La  Compagnie  Generale  Transatlantique  (D.  C.) 
59  Fed.  789  (1894).  In  Kentucky  the  enforcement  of  such  a  stipulation  is 
regarded  as  contrary  to  the  public  policy  of  the  forum  only  when  the  dam- 
age or  injury  was  sustained  within  such  jurisdiction.  Cleveland,  C,  C.  &  St. 
L.  R.  Co.  V.  Druien.  118  Ky.  237.  80  S.  W.  778,  66  L.  R.  A.  275  (1904) ;  Adams 
Express  Co.  v.  Walker,  119  Ky.  121.  S3  S.  W.  lOO,  67  L.  R.  A.  412  (1904). 

Continental  Law. — AYhether  a  duty  exists  to  carry  for  all  is  determined 


468  PARTICULAR  SUBJECTS.  (Part  2 

by  the  law  of  the  place  where  acceptance  is  refused.  R.  G.  April  11,  1901 
(12  Niemeyer,  452) ;  see  57  R.  G.  142  (Feb.  25,  1904). 

lu  the  absence  of  an  express  stipulation  or  circumstances  showing  a  con- 
trary intent  (see  App.  Paris,  March  19,  1907,  34  Clunet,  1139,  where  the  na- 
tional law  of  the  parties  was  applied),  the  obligations  arising  out  of  a  con- 
tract of  carriage  are  governed  by  the  law  of  the  place  where  such  contract  is 
made.  France,  Cass.  Feb.  23,  18G4  (D.  1864,  1,  IGG) ;  App.  Douai,  June  17,  1897 
(S.  1S9S,  2,  202) ;  App.  Douai,  March  2,  1907  (35  Clunet,  45G).  Italy,  art.  58,  Com. 
Code ;  Cass.  Turin,  Aug.  23,  1887  (4  Autran,  337) ;  Cass.  Naples,  Feb.  27,  1899 
(14  Autran,  841) ;  App.  Naples,  July  16,  1905  (21  Autran,  687).  See  App.  Venice, 
Aug.  2,  1901  (Annali  1901,  3,  413).  Germamj  on  the  other  hand,  applies  again 
the  law  of  the  place  of  performance  (R.  G.  April  29,  1902  [14  Niemeyer,  86]) ; 
which,  however,  need  not  be  the  law  of  the  place  of  delivery.  R.  G.  April 
19,  1903  (33  Clunet,  196);  R.  G.  April  29,  1903  (33  Clunet,  1168).  According 
to  the  general  rule  in  Germany,  applicable  to  all  bilateral  contracts,  the  ob- 
ligations of  the  parties  may  be  subject  to  different  laws.  O.  L.  G.  Hamburg, 
March  7,  1906  (18  Niemeyer,  113).  Nor  are  all  matters,  exclusive  of  those 
relating  directly  to  the  performance  of  the  contract,  necessarily  subject  to 
the  same  law,  e.  g.  the  question  of  demurrage.  9  R.  G.  51  (March  21,  1883). 
If  a  voyage  is  not  completed,  the  liability  for  freight  may  be  determined  in 
accordance  with  the  law  of  the  place  where  the  voyage  ends.  R.  G.  Jan.  23, 
1897  (7  Niemeyer,  450).  The  liability  of  a  connecting  carrier  is  governed  by 
the  law  to  which  such  carrier  is  subject.  R.  G.  April  10,  1901  (12  Niemeyer, 
112). 

Stipulations  in  a  bill  of  lading  may  not  be  enforced,  however,  on  the  ground 
of  public  policy.  France,  Cass.  June  12,  1894  (S.  1895,  1,  161),  and  note  by  Ch. 
Lyon-Caen ;  but  see  Cass.  Feb.  23,  1864  (D.  18G4,  1,  166). 

According  to  German  law,  all  rights  arising  under  bills  of  lading  issued  for 
goods  to  be  delivered  in  Germany  will,  in  the  interest  of  commercial  security, 
be  subjected  to  German  law.    34  R.  G.  72  (May  2,  1894). 

International  transportation  by  rail  on  the  continent  is  governed  to-day  al- 
most exclusively  by  the  Convention  of  Berne  of  August  14,  1890,  with  amend- 
ment of  October  10,  1901,  in  regard  to  which  see  Ch.  Lyon-Caen,  Da  Con- 
vention du  14  Oct.,  1890,  sur  le  transport  international  des  marchandises  par 
chemin  de  fer.  20  Chmet,  465-476;  21  Clunet,  435-471,  641-676;  Leon  Poin- 
sard,  Des  transports  internationaux  par  chemins  de  fer ;  19  Clunet,  33-55 ; 
Georg  Eger,  Die..Haftpflicht  der  Eisenbahnen  (nach  den  Bestimmungen  des 
internationalen  Ubereinkommens  iiber  den  Eisenbahnfrachtverkehr),  3  Nie- 
meyer, 589-606.  See,  also,  H.  Fromageot,  De  la  loi  applicable  aux  obliga- 
tions et  specialment  .a  la  responsabilit§  resultant  pour  les  armateurs  des  con- 
trats  d'affretement  par  charter-partie  ou  par  counaissement,  18  Autran,  742- 
779. 

As  to  maritime  law  in  general,  see  Ch.  Lyon-Caen,  Etudes  de  droit  inter- 
national prive  maritime,  4  Clunet,  479-495;  9  Clunet,  241-260,  488-500,  593- 
606. 

Bottomry  Bonds. — The  law  of  the  country  to  which  the  ship  belongs  has  been 
held  to  govern  the  validity  and  effect  of  bottomry  bonds.  Llovd  v.  Guibert 
[1865]  L.  R.  1  Q.  B.  115 ;  The  Gaetano,  7  Prob.  Div.  137  (1882) ;  Pope  v.  Nicker- 
son,  3  Story,  465,  Fed.  Cas.  No.  11,274  (1844) ;  Force  v.  Providence  Washington 
Ins.  Co.  (D.  C.)  35  Fed.  767  (1888).  Accord:  France,  App.  Bordeaux,  April  1, 
1889  (S.  1891,  2,  103) ;  App.  Alger,  March  9,  1904  (31  Clunet,  673).  In  favor  of 
the  general  maritime  law  as  administered  by  the  courts  of  the  forum,  Duran- 
ty  V.  Hart,  2  Moo.  P.  C.  N.  S.  289  (1864).  In  favor  of  the  law  of  the  place  where 
the  contract  is  made,  Italy,  art.  9,  Prel.  Disp.  Civ.  Code ;  Cass.  Naples,  March  1, 
1883  (12  Clunet,  457) ;  App.  Genoa,  Dec.  31,  1886  (16  Clunet,  169). 

The  mode  of  enforcing  bottomry  bonds  and  the  rank  of  creditors  are  subject 
to  the  law  of  the  forum.    The  Union,  Lush.  128  (1860). 

DjscnAEGE  OF  Obligations. — See  in  general.  Minor,  Conflict  of  Laws,  §§ 
187-191.  As  to  discharge  by  performance,  see  Graham  v.  First  Nat.  Bank, 
84  N.  Y.  893,  38  Am.  Rep.  528  (1881),  ante,  p.  345.  As  to  discharge  by  pon- 
performance,  see  INIutual  Life  Ins.  Co.  v.  Cohen.  179  U.  S.  262,  21  Sup.  Ct. 
106,  45  L.  Ed.  181  (1900) ;  Amsinck  v.  Rogers,  189  N.  Y.  252,  82  N.  E.  134,  12 
L.  R.  A.  (N.  S.)  875  (1907),  ante,  p.  427;  Tenant  v.  Tenant,  110  Pa.  478,  1  Atl. 
5.32  (1885),  ante  p.  415.     As  to  discharge  by  postponement  of  performance,  see 


I 


Ch.   2)  OBLIGATIONS.  469 

SECTION  2.— TORTS.  f  (A^^^'^ 


CARR  V.  FRACIS  TIMES  &  CO. 

(House  of  Lords  [1902]  A.  C.  17G,  71  L.  J.  K.  B.  361.) 

In  1898  the  appellant,  an  officer  of  the  British  navy  in  command 
of  H.  M.  S.  Lapwing,  acting  under  the  orders  of  the  British  govern- 
ment, seized  in  the  territorial  waters  of  Muscat  ammunition  belong- 
ing to  the  respondents  which  had  been  shipped  by  them  in  London 
on  board  the  Baluchistan.  The  respondents  having  brought  an  ac- 
tion against  the  appellant  for  the  conversion  of  the  goods,  the  defense 
was  that  the  seizure  was  lawful  by  the  law  of  Muscat,  having  been 

Rouquette  v.  Ch'ermann  [1875]  L.  R.  10  Q.  B.  525,  ante,  p.  439.  As  to  dis- 
charge by  release,  see  Greenwald  v.  Raster,  80  Pa.  45  (1S78) ;  Suydam  v.  Bar- 
ber, 18  N.  Y.  468,  75  Am.  Dee.  254  (1858) ;  Seymour  v.  Butler.  S  Iowa,  304  (18.59). 
As  to  discharge  by  acceptance  of  note,  see  Tarbox  v.  Childs,  105  Mass.  408, 
43  N.  E.  124  (1896). 

As  to  discharge  of  obligations  by  operation  of  the  statute  of  limitations,  see 
ante,  pp.  62-74. 

Under  the  federal  bankruptcy  acts,  the  debts  of  nonresident  aliens  have  been 
held  to  be  discharged  though  they  were  not  parties  to  the  proceedings.  Za- 
rega's  Case,  Fed.  Cas.  No.  18.204  (1842) ;  Pattison  v.  Wilbur,  10  R.  I.  448 
(1873);  Ruiz  V.  Eickerman,  5  Fed.  790,  2  McCrary,  259  (1881).  Contra:  Mc- 
Dougall  V.  Page,  55  Vt.  187,  45  Am.  Rep.  602  (1882). 

A  discharge  under  state  insolvency  proceedings  is  ineffective,  even  within  the 
state  where  such  discharge  is  had,  with  respect  to  citizens  of  the  United  States 
who  are  nonresidents  of  such  state,  if  no  personal  jurisdiction  over  the  credit- 
or is  obtained.  Baldwin  v.  Hale,  1  Wall.  223,  17  L.  Ed.  531  (1863) ;  Oilman 
V.  Lockwood.  4  Wall.  409,  18  L.  Ed.  432  (1866);  Pullen  v.  Hillman,  84  Me. 
129.  24  Atl.  795.  30  Am.  St.  Rep.  340  (1891) ;  Phoenix  Nat.  Bank  v.  Batcheller, 
151  Mass.  589,  24  N.  E.  917.  8  \j.  R.  A.  644  (1890).  Compare:  Adams  v.  Batchel- 
der,  173  Mass.  258,  53  N.  E.  824,  73  Am.  St.  Rep.  282  (1899).  This  Is  true,  al- 
though the  debt  arose  out  of  a  contract  entered  "into  or  to  be  performed  or 
both  entered  into  and  to  be  performed  in  the  state  where  such  proceedings 
took  place.  Oilman  v.  Lockwood,  4  Wall.  409,  18  L.  Ed.  432  (1860) ;  Hammond 
Beef  &  Provision  Co.  v.  Best,  91  Me.  431,  40  Atl.  338.  42  L.  R.  A.  528  (1898): 
Phoenix  Nat.  Bank  v.  Batcheller,  151  Mass.  589,  24  N.  B.  917,  S  L.  R.  A.  644 
(1890).  The  same  principle  has  been  held  applicable  to  corporations  created 
under  the  laws  of  a  sister  state.  Bergner  &  Engel  Brewing  Co.  v.  Drevfus,  172 
Mass.  154,  51  N.  E.  531,  70  Am.  St.  Rep.  251  (1898). 

A  discharge  under  the  law  of  a  foreign  country  will  not  be  recognized  in  the 
United  States  with  regard  to  creditors  who  were  not  parties  to  such  proceed- 
ings (Phelps  V.  Borland  [18S0]  103  N.  Y.  406,  9  N.  E.  307,  57  Am.  St.  Rep.  755 
[obiter]) ;  at  least  if  the  debt  was  made  in  and  with  reference  to  the  laws  of 
this  country  or  a  country  other  than  the  one  where  the  discharge  was  had. 
McMillan  v.  McNeill,  4  ^Vheat.  209,  4  L.  Ed.  552  (1819) ;  Green  v.  Sarmiento, 
Fed.  Cas.  No.  5,760  (1810) ;  In  re  Shepard  (1868)  Fed.  Cas.  No.  12,753  (obiter). 
With  respect  to  corporations  created  under  the  laws  of  a  foreign  country,  see 
Canada  Southern  R.  Co.  v.  Gebhard.  109  U.  S.  527,  3  Sup.  Ct.  363,  27  L.  Ed. 
1020  (1883).  See,  also,  Minor,  Conflict  of  Laws,  §  191 ;  Wharton,  Conflict  of 
Laws,  §§  522-529a ;  Hollis  R.  Bailey,  A  discharge  in  insolvency  and  its  effect 
upon  nonresidents.  6  Harv.  Law  Rev.  349-368. 

As  to  the  English  doctrine,  see  Oibbs  v.  Socigte  Industrielle,  29  Q.  B.  D. 
399  (1890) ;  Dicey,  Conflict  of  Laws,  Rules  114^117 ;  Westlake,  Priv.  Int.  Law, 
300. 


470 


PARTICULAR  SUBJECTS. 


(Part  2 


'>«t^ 


authorized  by  a  proclamation  issued  by  the  Sultan,  the  sovereign  ruler, 
of  Muscat,  and  pronounced  to  be  lawful  by  a  court  of  inquiry  in  Mus- 
cat, whose  decision  was  confirmed  by  the  Sultan.  Evidence  of  this 
was  given  at  the  trial.  The  effect  of  the  proclamation  and  inquiry 
is  stated  in  Lord  Lindley's  judgment.  Grantham,  J.,  who  tried  the 
case  with  a  jury,  entered  judgment  for  the  defendant.  The  Court  of 
Appeal  (A.  h.  Smith,  Vaughan  Williams,  and  Romer,  L.  JJ.) 
reversed  this  decision,  and  entered  judgment  for  the  plaintiff  for  the 
value  of  the  ammunition. 

Lord  Macnaghten.  This  case  has  been  very  fully  and  very  ably 
argued,  but  after  all  it  comes  to  an  extremely  short  point.  The  re- 
spondents, who  are,  or  were,  merchants  carrying  on  business  in  Lon- 
don, Bushire,  and  Muscat,  sue  the  appellant,  a  captain  in  the  British 
navy,  for  an  alleged  wrong  committed  abroad.  He  seized  their  goods, 
as  they  allege,  illegally,  and  they  claim  compensation  in  damages. 

Now,  it  is  well  settled  by  a  series  of  authorities  (of  which  the  latest 
^is  the  case  of_Phillips  v.  Eyre,  L.  R.  6  O.  B.  1,  in  the  Exchequer  Cham- 
ber), that  in  order  to  found  an  action  in  this  country  for  a  wrong  com- 
mitted abroad  two  conditions  must  be  fulfilled.  In  the  first  place,  the 
wrong  must  be  of  such  a  character  thatit  would  have  been  actionable 
7if  committed  in  England ;  and,  secondly,  tlie  act  must  not  have  been 
justiciable  by  tlie  law  of  the  pl/ire  wlrere  it  was  coiTiiTiitted.  In  the 
present 


EHr 

upon  the 


case  the  whole  question  turns  upon  the  second  proposition. 
It  is  not^isputedjhat  the  alleged  wrong  would  have  been  actionable 
if  it  had3££Q-^-6^^^^^»^te^^^"T~^ETIgTaTH^^  the-jjjglrigeasr^JL  was, 

however,  committed  within  the  dominions  of~~tHe  Sultan  of  Muscat, 
who  is  duly  proved  to  be  an  independent  sovereign.  It  was  cominitted 
in  the  territorial  waters  of  Muscat,  which  are,  in  my  opinidn,  for  this 
purpose,  as  much  a  part  of  the  Sultan's  dominions  as  the  land  over 
which  he  exercises  absolute  and  unquestioned  sway. 

The  appellant  says  that  the  act  complained  of  was  done  under  the 
authority  and  by  the  direction  of  the  Sultan;  that  he  adopted  it  as  his 
act,  and  declared  it  to  be  legal.  In  support  of  this  assertion  the  ap- 
pellant relies  upon  two  documents — the  proclamation  of  January  13, 
1898,  and  the  report  of  April  15,  1898,  adopted  and  confirmed  by  the 
Sultan  himself.  The  real  question  is,  what  is  the  true  meaning  and 
effect  of  these  documents? 

The  respondents  contend  that  the  documents  in  question  come  to 
nothing  more  than  this :  That  the  Sultan  of  Muscat  announced  by 
formal  proclamation  that  so  far  as  he  was  concerned  her  Britannic 
Alajesty  was  welcome  to  seize  munitions  of  war  destined  for  Indian 
or  Persian  ports,  if  they  were  the  property  of  British  subjects,  when 
found  within  the  territorial  waters  of  Muscat;  that  he  would  not 
resent  such  a!n  act  as  an  invasion  of  his  sovereignty ;  and  that  after- 
wards, on  inquiry,  he  declared  that  he  was  satisfied  that  her  Britannic 
Majesty  had  done  no  more  that  he  had  permitted  her  to  do.  I  do  not 
think  that  this  was  the  meaning  of  these  documents.    I  think  the  mean- 


/W^^ 


''yK^^Li/t4iu^Jt 


Ch.    2)  OBLIGATIONS.  471 

ing  was  that  the  act,  if  done,  was  to  be  done  under  his  authority,  as 
his  act,  and  that  after  inquiry  he  adopted  the  act  as  his  own,  and  de- 
clared it  to  be  legal — legal,  that  is,  according  to  the  law  of  Muscat, 
which,  for  anything  I  know  to  the  contrary,  may  be  nothing  more 
than  the  will  and  pleasure  of  the  despot  who  rules  over  that  country. 
If  this  was  the  true  meaning  of  these  documents — if  the  act  was  legal 
in  Muscat,  and  therefore  justifiable  there — in  my  opinion  there  is  a 
conclusive  answer  to  the  action,  and  I  am  therefore  of  opinion  that 
the  appeal  must  be  allowed. 

Order  of  Court  of  Appeal  reversed.^  ^ 


MACHADO  v.  FONTES. 

(Court  of  Appeal,  1897.    2  Q.  B.  231,  G6  L.  J.  Q.  B.  542.) 

Appeal  from  Kennedy  J.,  at  chambers. 

The  plaintiff  brought  this  action  to  recover  damages  from  the  de- 
fendant for  an  alleged  libel  upon  the  plaintiff  contained  in  a  pamphlet 
in  the  Portuguese  language  alleged  to  have  been  published  by  the_ 
de  f  endant~m3Bra^iL_ 

TKe~defendant  delivered  a  statement  of  defence  (in  which,  amongst 
other  defences,  he  denied  the  alleged  libel),  and  he  afterwards  took 
out  a  sumriions  for  leave  to  amend  his  defence  by  adding  the  follow-  . 

ing  plea:  "Further  the  defendant  will  contend  that  if  (contrary  to 
the  defendant's  contention)  the  said  pamphlet  has  been  published  in 
Brazil,  by  the  Brazilian  law  the  publication  of  the  said  pamphlet  in 
Brazil  cannot  be  the  ground  of  legal  proceedings  against  the  defend- 
ant in  Brazil  in  which  damages  can  be  recovered,  or  (alternatively) 
cannot  be  the  ground  of  legal  proceedings  against  the  defendant  in 
Brazil  in  which  the  plaintiff  can  recover  general  damages  for  any  in- 
jury to  his  credit,  character,  or  feelings." 

The  summons  came  before  Kennedy  J.  in  chambers,  who  allowed 
the  plea  to  be  added,  but  expressed  some  doubt  as  to  the  propriety 
of  so  doing,  and  gave  leave  to  plaintiff  to  bring  the  present  appeal. 

LoPES;,  L,.  J.  I  am  of  opinion  that  this  appeal  ought  to  be  allowed. 
[The  Lord  Justice  then  referred  to  the  facts,  and,  after  read'.ng  the 
plea,  continued :] 

Now  that  plea,  as  it  stands,  appears  to  me  merely  to  go  to  the  rem- 
edy. It  says,  in  effect,  that  in  this  case  no  action  in  which  damages 
could  be  recovered  would  lie  in  Brazil,  and,  assuming  that  any  dam- 
ages could  be  recovered  in  Brazil,  the^  would  be  special  damages  only. 
Mr.  Walton  contends  that  that  is  not  the  meaning  of  the  plea:  that 
the  plea  is  intended  to  raise  a  larger  question  than  that,  and  to  say 

7  2  The  Lord  Chaijcellor  (Earl  of  Halsbury)  and  Lord  Lindley  delivered  cou- 
curring  opiuions.    Lord  Shand  and  Lord  Brampton  concurred. 

(Xvv^^  ,  c^r'>a^     <z-wJa>       G)^^   ^  0-   ^±2y^    t>»^  ^^^  "^  cyC^^ 


472  PARTICULAR  SUBJECTS.  (Part  2 

that  libel  cannot  be  made  the  subject  of  any  civil  proceedings  at  all 
in  Brazil,  but  is  only  the  subject-matter  of  criminal  proceedings ;  and, 
for  the  purposes  of  what  I  am  about  to  say,  I  will  assume  that  to  be  so. 
Now  tlie^priixciple^  applicable  jn  the  present  case_appears  to__me  to 
be  this :  where  the  woros^  have^  beeti~|nibTIsired  outside  the  jurisdic- 
tion, then,  in  order  to  main  fa  in  an_action  here  on~tHe""ground  ot'^  tort 
dommitted  outside  the~Jurisdiction,__the  act  complaihed~ior~must  be 
wrongful — I  use^tlie  word  "wrongful"  deliberately — bo^h  by  the  law 
of  this  country,  and  also  by  the  law  of  the  country  where  it  wat;  rhm- 


mitted'f  and  the  firsnhing'vye TTave  to  consider  is  whethfir.  thnsp  ron- 
ditions  are  cornpjieiljwith. 

TrrTEe~case  of  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1,  Willes  J.  lays 
down  very  distinctly  what  the  requisites  are  in  order  to  found  such 
an  action.  He  says  this,  L.  R.  6  O.  B,  1,  at  p.  28 :  "As  a  general 
rule,  in  order  to  found  a  suit  in  England  for  a  wrong  alleged  to  have 
been  committed  abroad,  two  conditions  must  be  fulfilled :  First,  the 
wrong  must  be  of  such  a  character  that  it  would  have  been  actionable 
if  committed  in  England.  *  *  *  Secondly,  the  act  must  not  have 
been  justifiable  by  the  law  of  the  place  where  it  was  done."  Then  in 
the  M.  Moxham,  1  P.  D.  107,  James  L.  J.,  in  the  course  of  his  judg- 
ment, uses  these  words,  1  P.  D.  107,  at  p.  Ill :  "It  is  settled  that  if 
by  the  law  of  the  foreign  country  the  act  is  lawful  or  is  excusable,  or 
even  if  it  has  been  legitimized  by  a  subsequent  act  of  the  Legislature, 
then  this  Court  will  take  into  consideration  that  state  of  the  law — that 
is  to  say,  if_by:Jjie_iaw_of  the  foreign^  country  a  particular  person  is 
justified,  or  is  excused,  or  has  been  justified  or  ejccused-foj-  the  thing: 
done,  he  wilLnot  be  answerable  here^"_ 

'"Both  those  cases~seem  to^me  to  go  this  length :  that,  in  order  to_ 
constitute  a  good  defence  to  an  actionbrought  jn_thi5__roinitiX  i"  re- 
spect" of  an  act  done  in  a,  Joreign_country,  the  act_r£li£d-an__aiust  be 
one  wlTich"T?jmiQC£nt^in  the  countjx^where  it jwas  committed.  Tn  tHe 
preseftfcaselhere  can  be  no  doubt  that  the  action  lies,  for  it  complies 
with  both  of  the  requirements  which  are  laid  down  by  Willes  J.  The 
act  was  committed  abroad,  and  was  actionable  here,  and  not  justi- 
fiable by  the  law  of  the  place  where  it  was  committed.  Both  those 
conditions  are  complied  with ;  and,  therefore,  the  publication  in  Bra- 
zil is  actionable  here. 

It  then  follows,  directly  the  right  of  action_isestablished  in  this 
country,  that  the  ordinary  incidents  of  that  -actkm  and  the  ^^ropri- 
ate  remedies  ensue. 

TRefetore,Tfmiis  case,  in  my  opinion,  damages  would  flow  from  the 
wrong  committed  just  as  they  would  in  any  action  brought  in  respect 
of  a  libel  published  in  this  country. 

It  is  contended  that  it  would  be  much  better  that  this  question 
should  not  be  decided  at  the  present  time,  but  that  a  commission  should 
go  to  Brazil,  and  that  the  Brazilian  law  should  be  inquired  into.  If 
our  view  is  correct,  it  seems  to  me  that  that  would  be  a  great  waste 


Ch.    2)  OBLIGATIONS.  473 

of  time  and  money,  because,  having-  regard  to  the  authorities  I  have 
mentioned,  this  plea  is  absolutely  bad,  and  ought  to  be  struck  out. 

RiGBY,  Iv.  J.  I  am  of  the  same  opinion.  I  do  not  propose  to  decide 
this  case  on  any  technical  consideration  as  to  what  may  be  the  precise 
meaning  of  the  allegation  that  is  proposed  to  be  introduced  into  the 
defence;  I  give  it  the  widest  possible  construction  it  can  reasonably 
bear;  and  I  will  assume  it  to  involve  that  no  action  for  damages,  or 
even  no  civil  action  at  all,  can  be  maintained  in  Brazil  in  respect  of  a 
libel  published  there.  But  it  does  not  follow  from  that  that  the  libel 
is  not  actionable  in  this  country  under  the  present  conditions,  and 
having  regard  to  the  fact  that  the  plaintiff  and  defendant  are  here. 

Willes  J.,  in  Phillips  v.  Eyre,  L.  R.  6  O.  B.  1,  was  laying  down  a 
rule  which  he  expressed  without  the  slightest  modification,  and  with- 
out the  slightest  doubt  as  to  its  correctness ;  and  when  you  consider 
the  care  with  which  the  learned  judge  prepared  the  propositions  that 
he  was  about  to  enunciate,  I  ramint  Hnnbt  that  the  change  from  "ac- 
tionable" in  the  first  branch  of  the  rule  to  "juatifiabl^J'  in  the  second 


branch  of  it  was  deliberate.  Thefirst  requisite  is  that  the  wrong  must 
be  oFsuch  a  charactefThat  it  would  be  actionable  in  England.  It  was 
long  ago  settled  that  an  action  will  lie  by  a  plaintiff  here  against  a 
defendant  here,  upon  a  transaction  in  a  place  outside  this  country. 
But  though  such  action  may  be  brought  here,  it  does  not  follow  that 
it  will  succeed  here,  for,  when  it  is  committed  in  a  foreign  country, 
it  may  turn  out  to  be  a  perfectly  innocent  act  according  to  the  law 
of  that  country;  and  if  the  act  is  shewn  by  the  law  of  that  country 
to  be  an  innocent  act,  we  pay  such  respect  to  the  law  of  other  coun- 
tries that  we  will  not  allow  an  action  to  be  brought  upon  it  here. 
The  innocency  of  the  act  in  the  foreign  country  is  an  answer  to  the 
action.  That  is  what  is  meant  when  it  is  said  that  the  act  must  be 
"justifiable"  by  the  law  of  the  place  where  it  was  done. 

It  is  not  really  a  matter  of  any  importance  what  the  nature  of  the 
remedy  for  a  wrong  in  a  foreign  country  may  be. 

The  remedy  must  be  according  to  the  law  of  the  country  which  en- 
tertains the  action.  Of  course,  the  plea  means  that  no  action  can  be 
brought  in  this  country  in  respect  of  the  libel  (if  any)  in  Brazil.  But 
I  think  the  rule  is  clear.  It  was  very  carefully  laid  down  by  Willes  J. 
in  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1 ;  and  in  the  case  of  The  M.  Mox- 
ham,  1  P.  D.  107,  all  the  learned  judges  of  the  Court  of  Appeal  in 
their  judgments  laid  down  the  law  without  hesitation  and  in  a  uni- 
form manner;  and  first  one  judge  and  then  another  gave,  in  different 
language  but  exactly  to  the  same  purport  and  effect,  the  rule  enun- 
ciated by  Willes  J.  So  that  if  authority  were  wanting  there  is  a  de- 
cision clearly  binding  upon  us,  although  I  think  the  principle  is  suffi- 
cient to  decide  the  case. 

I  think  thereJs.jio,dQiibt_^  all  that  an  action  for  a  libel  published 
abroad  is  maintainable  here,  unless  it  can  be  shown  to  be  justified  or 
excused^  in  the  country  where  it  was  published.     James  L.  J.  states 


474  PARTICULAR  SUBJECTS.  (Part  2 

in  The  M.  Moxham,  1  P.  D.  107,  what  the  settled  law  is.  Mellish 
L.  J.  is  quite  as  clear  upon  that  point  as  James  L.  J.  in  laying  down 
the  general  rule;  and  Baggallay  L.  J.  also  takes  the  same  view.  We 
start,  then,  from  this :  that  the  act  in  question  is  prima  facie  action- 
able here,  and  the  only  thing  we  have  to  do  is  to  see  whether  there 
is  any  peremptory  bar  to  our  jurisdiction  arising  from  the  fact  that 
the  act  we  are  dealing  with  is  authorized,  or  innocent  or  excusable, 
in  the  country  where  it  was  committed.  If  we  cannot  see  that,  we 
must  act  according  to  our  own  rules  in  the  damages  (if  any)  which 
we  may  choose  to  give.  Here  we  cannot  see  it,  and  this  appeal  must 
be  allowed  with  costs. 
Appeal  allowed. 


THE  HALLEY. 

(Judicial  Committee  of  the  Privy  Council,  18G8.     L.  R.  2  P.  C.  193,  37  L.  J. 

Adm.  33.) 

The  Lord  Justice  Selwyn.^^  This  is  an  appeal  from  an  order  by 
the  judge  of  the  High  Court  of  Admiralty,  dated  the  26th  of  Novem- 
ber, 1867,  and  admitting  the  third  article  of  the  reply  filed  by  the 
plaintiffs  in  the  court  below,  who  are  the  present  respondents. 

The  cause  is  a  cause  of  damage  promoted  by  the  respondents  as 
owners  of  a  Norwegian  barque  called  the  Napoleon,  against  a  British 
steamship  called  the  Halley,  and  her  owners,  for  the  recovery  of 
damages  occasioned  to  the  Respondents  by  reason  of  a  collision  which 
took  place  on  the  8th  of  January,  1867,  in  Flushing  Roads,  between 
the  Napoleon  and  the  Halley. 

In  their  petition  the  respondents  state  that  the  collision  was  caused 
by  the  negligent  and  improper  navigation  of  the  Halley. 

The  appellants,  in  their  answer  to  that  petition,  state  that  the  Hal- 
ley is  a  steamship  belonging  to  the  port  of  Liverpool,  and  that  "by 
the  Belgian  or  Dutch  laws  which  prevail  in  and  over  the  river  Scheldt, 
and  to  which  the  said  river  is  subject,  from  the  place  where  the  said 
river  pilot  came  on  board  the  Halley,  and  thence  up  to  and  beyond 
the  place  of  the  aforesaid  collision,  it  was  compulsory  on  the  said 
steamer  to  take  on  board  and  be  navigated  under  the  direction  and 
in  charge  of  a  pilot  duly  appointed  or  licensed  according  to  the  said 
laws ;  and  it  was  by  virtue  of  such  laws  that  the  Halley  was  com- 
pelled to  take  on  board  and  to  be  given  in  charge,  and  until  the  time 
of  the  said  collision,  as  aforesaid,  to  remain  in  charge  of,  and  did 
take  on  board  and  was  given  in  charge,  and  up  to  the  time  of  the 
said  collision  remained  in  charge  of  the  said  river  pilot,  who  was 
duly  appointed  or  licensed  according  to  the  said  laws,  and  whom  the 
defendants  or  their  agents  did  not  select  and  had  no  power  of  se- 

7  3  statement  of  facts  and  arguments  of  counsel  omitted. 


Ch.    2)  OBLIGATIONS.  475 

lecting-;"  and  "that  the  collision  was  not  caused  by  the  negligence, 
default,  want  of  skill,  or  improper  conduct  of  any  person  on  board 
the  Halley,  except  the  said  river  pilot." 

In  reply  to  this  answer,  the  respondents  pleaded  the  following, 
being  the  third  article  in  their  reply : — "By  the  Belgian  or  Dutch  laws 
in  force  at  the  time  and  place  of  the  said  collision,  the  owners  of  a 
ship  which  has  done  damage  to  another  ship  by  collision,  are  liable 
to  pay  and  make  good  to  the  owners  of  such  lastly-mentioned  ship 
all  losses  occasioned  to  them  by  reason  of  such  collision,  notwithstand- 
ing that  the  ship  which  has  done  such  damage  was,  at  the  time  of  the 
doing  thereof,  being  navigated  under  the  direction  and  in  charge  of  a 
pilot  duly  appointed  or  licensed  according  to  the  said  laws,  and  not- 
withstanding that  such  damage  was  solely  occasioned  by  the  negli- 
gence, default,  or  want  of  skill  of  such  pilot,  without  any  contributory 
negligence  on  the  part  of  the  master  or  crew  of  such  lastly-mentioned 
ship,  and  notwithstanding  that  it  was  at  the  time  and  place  of  the 
collision,  by  the  said  laws,  compulsory  on  such  lastly-mentioned  ship 
to  be  navigated  under  the  direction  and  in  charge  of  such  pilot;  and 
the  defendants,  the  owners  of  the  Halley,  are  by  virtue  of  the  said 
laws,  liable  to  pay  and  make  good  to  the  plaintiffs  all  losses  occa- 
sioned to  them  by  the  said  collision,  even  if  the  statements  contained 
in  the  eleventh  article  of  the  said  answer  be  true." 

The  appellants  having  moved  the  court  below  to  reject  the  third 
article  of  the  reply,  on  the  ground  that,  even  if  the  third  article  were 
true,  the  appellants  would  not  be  liable  in  the  Court  of  Admiralty 
in  England,  the  learned  judge  of  that  court  has  made  the  order  now 
under  appeal,  by  which  he  has  refused  the  motion  of  the  appellants, 
and  has  sustained  the  third  article  of  the  reply. 

The  claim  of  the  respondents  is  stated  by  the  learned  judge  td  be 
founded  upon  a  tort  committed  by  the  defendants  in  the  territory 
of  a  foreign  state,  and  we  are  not  called  upon  to  pronounce  any 
opinion  as  to  the  rights  which  the  respondents  might  have  obtained, 
either  against  the  appellants  as  the  owners  of  the  Halley,  or  as 
against  that  ship,  if  the  respondents  had  instituted  proceedings  and 
obtained  a  judgment  in  the  foreign  court.  For  this  cause  is  a  cause 
for  damage  instituted  by  petition  in  the  High  Court  of  Admiralty  in 
England;  and  it  is  admitted  by  the  counsel  for  the  respondents  that 
the  question  before  us  must  be  decided  upon  the  same  principles  as 
would  be  applicable  to  an  action  for  damages  for  the  collision  in 
question  if  commenced  in  the  Court  of  Queen's  Bench  or  Common 
Pleas.  But  it  is  contended  on  their  part,  and  has  been  held  by  the 
learned  judge  in  fhe^court  below,  that  the"  fespPiT^ehts  afe  entiU^ecf 
to  plead  that  the_Jaw  of  Belgium,  wTtKih  whose  territorial  jurisdic- 
tion  the  collision  tpok  placeVTenders  the  owners  of  the  Halley,  al- 
thoug^~compelled  to  take  a  pilot  on  boaTdTliable  to  make  reparation, 
for  thelnjury^wHichrshe  has  doner" 


476  PARTICULAR  SUBJECTS.  (Part  2 

Their  Lordships  agree  with  the  learned  judge  in  his  statement  of 
the  common  law  of  England,  with  respect  to  the  liability  of  the  owner 
of  a  vessel  for  injuries  occasioned  by  the  unskilful  navigation  of  his 
vessel,  while  under  the  control  of  a  pilot,  whom  the  owner  was  com- 
pelled to  take  on  board,  and  in  whose  selection  he  had  no  voice;  and 
that  this  law  holds  that  the  responsibihty  of  the  owner  for  the  acts 
of  his  servant  is  founded  upon  the  presumption  that  the  owner  chooses 
his  servant  and  gives  him  orders  which  he  is  bound  to  obey,  and  that 
the  acts  of  the  servant,  so  far  as  the  interests  of  third  persons  are 
concerned  must  always  be  considered  as  the  acts  of  the  owner. 

This  exemption  of  the  owner  from  liability  when  the  ship  is  under 
the  control  of  what  has  been  termed  a  "compulsory  pilot"  has  also  been 
declared  by  express  statutory  enactments.  Vide  Merchant  Shipping 
Act,  1854,  17  &  18  Vict.  c.  104,  s.  388. 

In  cases  like  the  present,  when  damages  are  claimed  for  tortious 
collisions,  a  chattel,  such  as  a  ship  or  carriage,  may  be,  and  frequently 
is,  figuratively  spoken  of  as  the  wrongdoer ;  but  it  Is  obvious,  that  al- 
though redress  may  sometimes  be  obtained  by  means  of  the  seizure 
and  sale  of  the  ship  or  carriage,  the  chattel  itself  is  only  the  instrument 
by  the  improper  use  of  which  the  injury  is  inflicted  by  the  real  wrong- 
doer. 

Assuming,  as,  for  the  purposes  of  this  appeal,  their  Lordships  are 
bound  to  assume,  the  truth  of  the  facts  stated  in  the  pleadings,  and 
applying  the  principles  of  the  common  law  and  statute  law  of  Eng- 
land to  those  facts,  it  appears  that  the  tort  for  which  damages  are 
sought  to  be  recovered  in  this  cause  was  a  tort  occasioned  solely  by 
the  negligence  or  unskilfulness  of  a  person  who  was  in  no  sense  the 
servant  of  the  appellants,  a  person  whom  they  were  compelled  to  re- 
ceive on  board  their  ship,  in  whose  selection  they  had  no  voice,  whom 
they  had  no  power  to  remove  or  displace,  and  who,  so  far  from  being 
bound  to  receive  or  obey  their  orders,  was  entitled  to  supersede,  and 
had,  in  fact,  at  the  time  of  the  collision,  superseded,  the  authority  of 
the  master  appointed  by  them;  and  their  Lordships  think  that  the 
maxim,  "qui  facit  per  alium,  facit  per  se,"  cannot  by  the  law  of  Eng- 
land be  applied,  as  against  the  appellants,  to  an  injury  occasioned 
under  such  circumstances ;  and  that  the  tort  upon  which  thjs  cause 
is  founded  isjmfLwhich  would  not  be  recognized  by  the  law  of  Eng- 
land as  creating  anjMiability  in,  or  cause  of  actioiT  agamst,  the  ap- 
pellants. 

It  follows,  therefore,  that  the  liability  of  the  appellants,  and  the 
right  of  the  respondents  to  recover  damages  from  them,  as  the  owners 
of  the  Halley,  if  such  liability  or  right  exists  in  the  present  case,  must 
be  the  creature  of  the  Belgian  law ;  and  the  question  is,  whether  an 
English  court_gfJustice  is Jjound  to  apply  and^nforce  that  law  in  a 
case,  wheiT^  aceeFding_toJts  own'prfncipres.r-QQJ'Vrohg^lTas  been  com- 
mitted  by  the  defegdant&^and  no^jjglit  of  action  agamit  them  exists. 

The    counsel    for    the  respondents,    when    challenged    to    produce 


Ch.    2)  OBLIGATIONS.  477 

any  instance  in  which  such  a  course  had  been  taken  by  any  English 
court  of  justice,  admitted  his  inability  to  do  so,  and  the  absence  of 
any  such  precedent  is  the  more  important,  since  the  right  of  all  per- 
sons, whether  British  subjects  or  aliens,  to  sue  in  the  English  courts 
for  damages  in  respect  of  torts  committed  in  foreign  countries  has 
long  since  been  established ;  and,  as  is  observed  in  the  note  to  Mostyn 
V.  Fabrigas,  in  Smith's  Leading  Cases,  vol.  1,  p.  656,  there  seems  to  be 
no  reason  why  aliens  should  not  sue  in  England  for  personal  injuries 
done  to  them  by  other  aliens  abroad,  when  such  injuries  a.re  action- 
able both  by  the  law  of  England  and  also  by  that  of  the  country 
where  they  are  committed,  and  the  impression  which  had  prevailed  to 
the  contrary  seems  to  be  erroneous. 

In  the  case  of  The  Amalia,  1  Moore's  P.  C.  Cases  (N.  S.)  484, 
Lord  Chelmsford,  in  delivering  the  opinion  of  the  Judicial  Commit- 
tee, said  "Suppose  the  foreigner,  instead  of  proceeding  in  rem  against 
the  vessel,  chooses  to  bring  an  action  for  damages  in  a  court  of  law 
against  the  owners  of  the  vessel  occasioning  the  injury,  the  argument 
arising  out  of  the  acquired  lien  would  be  at  once  swept  away,  and 
the  rights  and  liabilities  of  the  parties  be  determined  by  the  law 
which  the  court  would  be  bound  to  administer." 

As  Mr.  Justice  Story  has  observed  in  his  Conflict  of  Laws,  p.  32, 
"it  is  difficult  to  conceive  upon  what  ground  a  claim  can  be  rested  to 
give  to  any  municipal  laws  an  extra-territorial  effect,  when  those  laws 
are  prejudicial  to  the  rights  of  other  nations  or  to  those  of  their  sub- 
jects."   And  even  in  the  case  of  a  foreign  judgment  which  is  usually 
conclusive  inter  partes,  it  is  observed  in  the  same  work,  at  §  618a,  that 
the  courts  of  England  may  disregard  such  judgment  inter  partes  if  /|^ 
it  appears  on   the   record  to   be  manifestlv   contrarv   to   public^ius- 
tice,  or  to  be  based  on  domestic  legislation  not  recognised  in  Eng-  ^^^ 
lancl  or  other  foreign  countries,  or  is  fonnded  upon   a   r)-|jc;apprp1ipn- 
si(^nof  what  is  the  law  of  England :     Simpson  v.  Fogo,  1  H.  &  M.Q^ 
19o. 

It  is  true  that  in  many  cases  the  courts  of  England  inquire  into  -^ 
and  act  upon  the  law  of  foreign  countries,  as  in  the  case  of  a  con- 
tract entered  into  in  a  foreign  country,  where,  by  express  reference, 
or  by  necessary  implication,  the  foreign  law  is  incorporated  with  the 
contract,  and  proof  and  consideration  of  the  foreign  law  therefore 
become  necessary  to  the  construction  of  the  contract  itself.  And  as 
in  the  case  of  a  collision  on  an  ordinary  road  in  a  foreign  country, 
where  the  rule  of  the  road  in  force  at  the  place  of  collision  may  be  a 
necessary  ingredient  in  the  determination  of  the  question  by  whose 
fault  or  negligence  the  alleged  tort  was  committed.  But  in  these  and 
similar  cases  the  English  court  admits  the  proof  of  the  foreign  law 
as  part  of  the  circumstances  attending  the  execution  of  the  contract, 
or  as  one  of  the  facts  upon  which  the  existence  of  the  tort,  or  the  right 
to  damages,  may  depend,  and  it  then  applies  and  enforces  its  own  law 
so  far  as  it  is  applicable  to  the  case  thus  established ;   but  it  is,  in  their 


478  PARTICULAR  SUBJECTS.  (Part   2 

Lordships'  opinion,  alike  contrary  to  principle  and  to  authority  to  hold, 
that  an  English  court  of  justice  will  enforce  a  foreign  municipal  law, 
and  will  give  a  remedy  in  the  shape  of  damages  in  respect  of  an'  act 
which,  according  to  its  own  principles,  imposes  no  liability  on  the  per- 
son from  whom  the  damages  are  claimed. 

The  case  of  Smith  v.  Condry,  1  How.  (U.  S.)  28,  11  L.  Ed.  35, 
in  the  Supreme  Court  of  the  United  States,  appears  at  first  sight  to 
have  an  important  bearing  upon  this  case ;  but,  upon  an  investigation 
of  the  report,  it  does  not  appear  that  any  question  as  to  a  conflict 
between  the  English  law  and  the  American  law  was  discussed  in 
that  case,  or  that  the  precise  point  now  under  consideration  was  no- 
ticed in  the  judgment,  nor  is  it  specifically  mentioned  in  any  of  the 
three  exceptions  which  were  taken  to  the  decision  of  the  inferior 
court,  and  there  is  no  report  of  the  arguments. 

Their  Lordships  think,  therefore,  that  that  case  cannot  be  treated 
as  an  authority  sufficient  to  support  the  contention  of  the  respondents ; 
and,  on  the  whole,  they  think  it  their  duty  humbly  to  advise  her 
Majesty  to  allow  this  appeal,  and  to  order  that  the  third  article  of 
the  plaintiff's  reply  be  rejected,  and  that  there  should  be  no  costs  of 
diis  appeal.'^* 


MORRISETTE  v.  CANADL\N  PAC.  R.  CO. 

(Supreme  Court  of  Vermont,  1904.     76  Vt.  267,  56  Atl.  1102.) 

Stafford,  J.'^^  The  plaintiff  was  a  brakeman  upon  one  of  the  de- 
fendant's freight  trains,  and  claimed  to  have  been  injured  through 
the  negligence  of  the  company  in  maintaining  a  switch  too  near  the 
track,  so  that  when  he  was  attempting  to  mount  a  moving  car  he 
struck  against  it  and  was  knocked  off.  The  accident  occurred  in  the 
Province  of  Quebec,  and  the  declaration,  treating  the  law  of  the  prov- 
ince as  matter  of  fact,  alleges  that  the  defendant,  as  employer  of 
the  plaintiff,  owed  him  the  care  and  oversight  which  the  good  father 
of  a  family  owes  to  his  children,  and  was  bound  to  guard  him  even 
against  his  own  mistakes  and  thoughtlessness ;  that  neither  assump- 
tion of  risk  nor  contributory  negligence  constituted  a  bar  to  the  right 
of  recovery,  but  operated  only  to  reduce  the  damages.  The  defendant 
objected  to  any  and  all  evidence  of  the  law  of  Quebec,  upon  the 
ground  that,  as  it  was  alleged  in  the  declaration,  it  was  "in  direct 
conflict  with  the  law  of  Vermont,  and  related,  not  to  the  right  of  ac- 
tion, but  solely  to  the  remedy."  The  objections  stated  were  overruled, 
an  exception  was  allowed,  and  the  plaintiff  introduced  evidence  in 
support  of  his  allegations.     Under  this  exception  the  defendant  in 

74  Accord:  29  R.  G.  90  (June  25  and  July  9,  1892),  on  ground  that  section  738, 
Coin.  Code,  contains  an  absolute  and  positive  rule  of  law. 
75A  part  of  the  opinion  has  been  omitted. 


Ch.    2)  OBLIGATIONS.  479 

this  court  presents  the  objection  that  the  plaintiff  should  not  have  been 
permitted  to  make  good  his  declaration  touching  the  law  of  the  prov- 
ince on  the  subject  of  contributory  negligence,  because  he  had  also 
alleged  that  the  plaintiff  was  in  fact  wholly  free  from  fault;  that, 
having  made  the  latter  allegation,  he  was  bound  to  prove  it.  This 
question  is  not  raised  by  the  objection  and  exception,  and  is  not  con- 
sidered. 

It  is  Ti,'p2f<^Hjpd:H  ^-haf  pviflpnre  as  to  the  law  of  Contributory  neg- 
ligence  wa.s__inadmissible  because  it  related,  n^^  to  the  right  of  ac- 
tion,  but  only  to  the_remedy.  But  we  think  it  related  clearly  to  the 
right  of  actiQiT.     By  the  law  nf^  Vermnritjj^jva^^  law  qf 

Canada,  as  the^yjdence  in  question  tended  to  show,  it  was  not  a  bar. 

It  is  further  objected  that  the  Canadian  law,  as  alleged,  although 
neither  criminal  nor  penal,  is  so  different  from  ours  that  we  ought 
not  to  administer  it.  Comity  does  not  require  us  to  take  up  and  en- 
force the  law  of  a  foreign  state  which  is  contrary  to  pure  morals,  or 
to  abstract  justice,  or  to  enforce  which  would  be  contrary  to  our  own 
public  policy.  The  law  we  are  considering  is  not  claimed  to  be  open 
to  either  of  the  first  two  objections,  but  is  claimed  to  be  open  to  the 
third,  because  it  is  so  dinerent  from  the  law  of  Vermont.  Some  states 
have  adopted  this  view,  declining  to  administer  foreign  laws  unless 
closely  analogous  to  their  own.  Mexican  Nat.  Ry.  Co.  v.  Jackson,  89 
Tex.  107,  33  S.  W.  857,  31  L.  R.  A.  276,  59  Am.  St.  Rep.  28;  Anderson 
V.  Milwaukee  &  St.  P.  Ry.  Co.,  37  Wis.  321;  Richardson  v.  New 
York  Cent.  R.  Co.,  98  Mass.  85,  But  we  believe  the  sounder  opinion 
is  that  a  court  shnnlH^  not^  in  ntherwisp~^roper  cases,  retuse  to  aclopt 


and  apply  tliTlawof  a  foreign  state,  however  ijnlike  the""  law  oF^s 
own,  unlesS'lT^be'^ntrary  to  pure  morals,  or  abstract  justTceTqrjiriless 
the  enforcement  would  be  oF  evil  "exarhpTeTand  harmful  to  its  ow^n 
people,  and~therefore  inconsistenrwith  the  dignity  of^tlie^^;Tyyern merit 
whose  autHority  is  invol-^edr\l  udged  by  that  test.'the  ruling  was  cor- 
rect. Hefrickv.  MinneapoIis~&  St.  L.  Ry.  Co.,  31  Minn.  11,  16  N.  W. 
413,  47  Am.  Rep.  771;  Higgins  v.  Central  N.  E.  &  W.  R.  Co.,  155 
Mass.  180,  29  N.  E.  534,  31  Am.  St.  Rep.  544;  Dennick  v.  Central  R. 
Co.  of  New  Jersey,  103  U.  S.  11,  26  L.  Ed.  439;  McLeod  v.  Con- 
necticut &  P.  R.  R.  Co.,  58  Vt.  727,  6  Atl.  648;  Chicago  &  E.  I.  R- 
Co.  V.  Rouse,  178  111.  132,  52  N.  E.  951,  44  L.  R.  A.  410. 

It  was  still  further  objected  that  in  the  circumstances  of  this  case 
a  resort  to  our  tribunals  was  so  needless  and  so  embarrassing  that  the 
county  court  should  have  refused  to  entertain  the  complaint.  See 
Great  Western  Ry.  Co.  of  Canada  v.  Miller,  19  Mich.  306;  Gardner 
V.  Thomas,  14  Johns.  134,  7  Am.  Dec.  445.  The  defendant  is  a  Cana- 
dian corporation.  The  plaintiff  is  a  resident  of  Canada,  and  there 
the  accident  occurred.  The  courts  of  the  Dominion  were  open  to  the 
plaintiff.  The  witnesses  could  there  have  been  compelled  to  attend 
and  testify  in  person,  A  view  could  have  been  ordered,  if  necessary, 
and  the  governing  law  would  have  been  determined  by  judges  with- 


480  PARTICULAR  SUBJECTS.  (Part  2 

out  the  necessity  of  a  tedious  and  perplexing-  trial  by  jury  to  settle 
the  law  as  a  question  of  fact.  Without  saying  what  might  or  ought 
to  have  been  done  if  a  motion  to  this  effect  had  been  made  at  the 
outset  of  the  case,  we  do  not  feel  at  liberty  at  this  time  and  under 
this  exception  to  say  that  the  proceeding  should  have  been  dismissed. 
The  exception  was  merely  to  the  admission  of  evidence  concerning 
the  law  of  Canada  on  the  ground  that  the  case  was  governed  by  the 
law  of  Vermont — a  position  that  cannot  be  sustained.  Morrisette  v. 
Canadian  Pac.  Ry.  Co.,  74  Vt.  232,  52  Atl.  520.     *     *     * 


DYI<E  v.  ERIE  RY.  CO. 

(Court  of  Appeals  of  New  York,  1871.    45  N.  Y.  113,  6  Am.  Rep.  43.) 

Appeals  from  the  General  Term  of  the  Supreme  Court  in  the  Second 
district  in  Dike's  case,  and  from  the  General  Term  of  the  Supreme 
Court  in  the  Sixth  district  in  Floyd's  case. 

These  actions  were  to  recover  damages  for  personal  injuries  sus- 
tained by  the  plaintiffs  while  passing  over  the  road  of  the  defendant 
as  passengers,  caused  by  the  negligence  of  the  defendant's  servants 
and  agents.  The  defendant  is  a  corporation  existing  under  the  laws 
of  the  state  of  New  York,  owning  and  operating  a  railroad  for  the 
carriage  of  freight  and  passengers  between  the  cities  of  Buffalo  and 
New  York,  in  that  State,  and  the  intermediate  places,  running  its 
road,  en  route  between  the  terminal  named,  for  short  distances  in  the 
States  of  Pennsylvania  and  New  Jersey  by  the  permission  of  those 
States  respectively. 

Each  of  the  plaintiffs  purchased  a  ticket  and  took  passage  on  the 
defendant's  road,  on  the  14th  of  April,  1868,  from  stations  in  this 
state  to  the  city  of  New  York,  and  whilejn  transit  from  the  place  of 
departure  to  the  city  of_jjjwiJYork^_arid  upon  a  partof  ^-li^^  rn^iA  in 
the  Sta^e_gflPennsyjyania,  ■yii<;tainpr1M4ip^^jnrif^<;  ro]-pp]airiPfinf  By 
an  act  of  the  legislature"  of  "Pennsylvania,  passed  April  4th,  1868  (P. 
L.  58),  the  recovery  in  actions  then  or  thereafter  instituted  against 
common  carriers  or  railroad  corporations  for  personal  injuries  is  lim- 
ited to  $3,000.  Upon  the  trials,  it  was  claimed  in  behalf  of  the  de- 
fendant that  the  rights  of  recovery  of  the  plaintiff's  were  controlled  by 
this  act.  The  claim  was  overruled  by  the  judge,  and  each  of  the  plain- 
tiffs had  verdicts  in  excess  of  the  limit  prescribed  by  the  Pennsyl- 
vania statute.  Dike  for  $35,000,  at  the  Kings  Circuit,  and  Floyd  for 
$15,000  at  the  Tioga  Circuit,  and  judgments  upon  such  verdicts  were 
affirmed  by  the  Supreme  Court  at  the  General  Terms.  The  defendant 
has  appealed  to  this  court. 

Allen,  J.  The  only  question  to  be  considered  upon  this  appeal  is 
as  to  the  effect  of  the  Pennsylvania  statute,  limiting  the  amount  of 


Ch.    2)  OBLIGATIONS.  481 

the  recovery  in  actions  of  this  character.  It  is  conceded  that  the 
statutes  of  one  State  are  not  obligatory  upon  the  courts  of  otlier  States ; 
that  they  liave  not,  proprio  vigore,  the  force  of  law  beyond  the 
limits  of  the  State  enacting  them.  But  it  is  sought  to  bring  these 
actions  within  the  operation  and  effect  of  the  foreign  statute  upon 
the  ground  that  the  contracts  were  made  with  reference  to  the  laws 
of  that  State,  and  the  causes  of  action  arose  there. 

The  generally  received  rule  for  the  interpretation  of  contracts,  is 
that  they  are  to  be  construed  and  interpreted  according  to  the  laws 
of  the  State  in  which  they  are  made  unless  from  their  terms,  it  is 
perceived  that  they  were  entered  into  with,  a  view  to  the  laws  of  some 
other  State.  The  lex  loci  contractus,  determines  the  nature,  validity, 
obligation  and  legal  effect  of  the  contract,  and  gives  the  rule  of 
construction  and  interpretation,  unless  it  appears  to  have  been  made 
with  reference  to  the  laws  and  usages  of  some  other  State  or  govern- 
ment, as  when  it  is  to  be  performed  in  another  place,  and  then  in  con- 
formity to  the  presumed  intention  of  the  parties,  the  law  of  the  place 
of  performance  furnishes  the  rule  of  interpretation.  (Prentiss  v. 
Savage,  13  Mass.  20 ;  Aledbury  v.  Hopkins,  3  Conn.  472 ;  Everett  v. 
Vendryes,  19  N,  Y,  436 ;  Hoyt  v,  Thompson's  Exr,,  Id,  207 ;  Curtis 
V.  Leavitt,  15  N.  Y,  227.)  The  contracts  before  us  were  made  in  the 
State  of  New  York,  and  between  citizens  of  that  State.  The  plain- 
tiff's were  actual  inhabitants,  and  the  defendant  was  a  corporation 
existing  by  the  laws  of  that  State.  The  contracts  were  for  the  car- 
riage and  conveyance  of  the  plaintiffs  over  the  road  of  the  defendant, 
between  two  places  in  the  same  State,  to  wit,  from  stations  on  the 
line  of  the  road,  in  the  western  part  of  the  State  to  the  city  of  New 
York.  The  duty  and  obligation  of  the  defendant,  in  the  performance 
of  the  contracts  commenced  and  ended  within  the  State  of  New  York. 
Although  the  route  and  line  of  defendant's  road  between  the  places 
at  which  the  plaintiffs  took  their  passage  and  their  destination,  passed 
through  portions  of  the  States  of  Pennsylvania  and  New  Jersey,  by 
the  consent  of  those  States  respectively,  the  parties  cannot  be  presumed 
to  have  contracted  in  view  of  the  laws  of  those  States.  The  contracts 
were  single  and  the  performance  one  continuous  act.  The  defendant 
did  not  undertake  for  one  specific  act,  in  part  performance  in  one 
State,  and  another  specific  and  distinct  act  in  another  of  the  States 
named,  as  to  which  the  parties  could  be  presumed  to  have  had  in  view 
the  laws  and  usages  of  distinct  places.  Whatever  was  done  in  Penn- 
sylvania, was  a  part  of  the  single  act  of  transportation  from  Attica,- 
or  Waverly,  in  the  State  of  New  York,  to  the  city  of  New  York, 
and  in  performance  of  an  obligation  assumed  and  undertaken  in  this 
State,  and  which  was  indivisible.  The  obligation  was  created  here, 
and  by  force  of  the  laws  of  this  State,  and  force  and  effect  must  be 
given  to  it,  in  conformity  to  the  laws  of  New  York.  (Carnegie  v. 
Morrison,  2  Mete.  (Mass.)  381,  Per  Shaw,  Ch.  J.  The  performance 
"was  to  commence  in   New   York,  and  to  be   fully  completed   in   the 

LOK.CONF.L.— 31 


^  -  -  ^ 


u>f-Y^^    J  'XJ^*         4S2  PARTICULAR  SUBJECTS.  (Part   2 


same  State,  but  liable  to  breach,  partial  or  entire  in  the  States  of  Penn- 
sylvania and  New  Jersey,  through  which  the  road  of  the  defendant 
passed,  but  whether  the  contract  was  broken,  and  if  broken,  the  con- 
sequences of  the  breach  should  be  determined  by  the  laws  of  this 
State.  It  cannot  be  assumed  that  the  parties  intended  to  subject  the 
contract  to  the  laws  of  the  other  States,  or  that  their  rights  and  lia- 
bilities should  be  qualified  or  varied  by  any  diversities  that  might  exist 
between  the  laws  of  those  States  and  the  lex  loci  contractus.  The 
case  of  the  Peninsular  and  Oriental  Steam  Navigation  Co.  v.  Shand 
(3  Moore's  P.  C,  272),  is  somewhat  analogous  in  principle  to  the  case 
at  bar.  A  passenger,  by  an  English  vessel  belonging  to  an  English 
company,  from  Southampton  to  Mauritius,  via  Alexandria  and  Suez, 
sustained  a  loss  of  his  baggage  between  Alexandria  and  Mauritius, 
and  it  was  held  that  the  contract  for  the  passage  was  to  be  interpreted 
by  the  law  of  England,  the  place  where  the  contract  was  made.  The 
-^  Supreme  Court  at  Mauritius  had  held  that  the  contract  was  governed 
57  ^^^  by  the  French  law  in  force  in  Mauritius,  and  refused  to  the  defendants 
o^j»t^    r\  ^  the  benefit  of  an  exemption   from  liability   for  loss  of  property,  to 

_V       •  1  which  they  were  entitled  by  the  terms  of  the  contract  as  interpreted 

w-  1^  by  the  laws  of  England,  and  the  judgment  was  reversed,  upon  ap- 

(w.</»  ^      peal,  by  the  Privy  Council. 

^'  ^      U-  ^'  y         Whether  the  actions  are  regarded  as  actions  of  assumpsit  upon  the 
^t/^  *      f)  contracts,  or  as  actions  upon  the  case  for  negligence,  the  rights  and 

C'      Ojn/^    '^      liabilities  of  the  parties  must  be  judged  by  the  same  standard.     The 
p^       _,^-V^  form  of  the  action  concerns  the  remedy,  but  does  not  affect  the  legal 

^  ^      \jf      obligations  of  the  parties.     In  either  form  of  action  the  liability  of  the 
ylKi      Q  aJ^)^        defendant,  and  the  rights  of  the  plaintiffs,  are  based  upon  the  contracts. 
^^        '-^      The  defendant  owed  no  duty  to  the  plaintiffs,  except  in  virtue  of  the 
contracts  and  the  obligations  for  the  violation  and  breach  of  which 
an  action  may  be  brought  are  only  co-extensive  with  the  contracts 
9^\         M  ,'  made.     It  follows,  that  the  law  of  Pennsylvania  cannot  enlarge  or 

Jy^^  restrict  the  liability  of  parties  to  a  contract,  which  for  its   validity, 

^P^^^     V' ^  effect,  and  construction,  is  subject  to  the  laws  of  New  York.     The 

^/•^        %f  damages  to  which  a  party  is  entitled,  upon  the  breach  of  a  contract, 

•  ^-     '  or  violation  of  a  duty  growing  out  of  a  contract,  and  the  rule  and 

measure  of  damages  pertains  to  the  right  and  not  to  the  remedy.     It 
is  matter  of  substance,  and  the  principal  thing  sought,  and  not  a  mere 
incident  to  the  remedy  for  the  principal  thing.     It  is  conceded,  that 
the  statutes  of  Pennsylvania  have  no  intrinsic  extra  territorial  force, 
and  that  they  bind  only  within  the  jurisdictional  limits  of  the  State. 
Upon  principles  of  comity,  effect  is  sometimes  given  by  the  courts 
of  a  State  to  foreign  laws.     In  matters  of  contract,  such  eft"ect  is  ac- 
corded to  statutes  of  other  States,  only  to  carry  out  the  intent  of  and 
do  justice  between  the  parties,  never  to  qualify  or  vary  the  effect  of  a 
V     -  /ipv  ^    -y^  contract  between  parties  not  citizens  of  such  foreign  State,  or  sub- 
(hOX^-^^  t  cA^     ject  to  its  laws,  and  not  made  in  view  of  the  laws  of  such   State. 
//  ^        .      Effect  will  not  be  given  by  the  courts  of  a  State  to  foreign  laws  in 


:>^- 


.Ji^ 


Ch.  2) 


OBLIGATIONS. 


483 


derogation  of  the  contracts,  or  prejudicial  to  the  rights  of  citizens. 
(Liverpool,  Brazil,  &c.,  Steam  Navigation  Company  v.  Benham,  2 
Law  Rep.,  P.  C.  Cases,  193 ;  Hale  v.  New  Jersey  Steam  Nav.  Co., 
15  Conn.  539,  39  Am.  Dec.  398;  Arnott  v.  Redfern,  2  Carr.  &  Payne, 
88;  Gale  v.  Eastman,  7  Mete.  [^lass.]  14.) 

The  actions  are  not  given  by  the  laws  of  Pennsylvania.  They  grow 
out  of  the  contracts  and  the  duties  resulting  from  the  contracts,  and 
are  given  by  the  common  law,  and,  therefore,  the  laws  of  another 
State  in  an  action  brought  here  cannot  prescribe  the  measure  of  dam- 
ages, or  limit  the  liability  of  the  parties. 
"The  judgments  should  be  affirmed. 


ALABAMA  GREAT  SOUTHERN  R.  CO.  v.  CARROLL 

(Supreme  Court  of  Alabama,  1S92.    97  Ala.  12G,  11  South.  S03,  18  L.  R.  A.  433, 

38  Am.  St.  Rep.  163.) 


Action  by  W.  D.  Carroll,  a  citizen  of  Alabama,  against  the  Alabama  <,i 
Great  Southern  R.  R.  Co.,  an  Alabam.a  corporation,  to  recover  dam- 
ages for  personal  injuries  received  in  Mississippi  while  serving  as  a 
brakeman  on  defendant's  road.     Judgment  for  plaintiff. 

McCivELLAN,  J.^*^  [After  holding  that  under  the  law  of  Mississippi 
the  defendant  corporation  was  not  liable  to  plaintiff  on  account  of 
injury  sustained  in  consequence  of  the  negligence  of  a  fellow-servant, 
and  that  no  recovery  could  be  had  under  the  employers'  liability 
act  of  Alabama,  since  only  the  negligence  which  produced  the  casu- 
alty had  occurred  in  Alabama  while  the  injuries  had  been  received  in 
Mississippi,  the  learned  Justice  continued  as  follows:] 

Another  consideration, — that  referred  to  above, — it  is  insisted,  en- 
titles this  plaintiff  to  recover  here  under  the  employers'  liability  act 
for  an  injury  inflicted  beyond  the  territorial  operation  of  that  act.  This 
is  claimed  upon  the  fact  that  at  the  time  plaintiff  was  injured  he  was 
in  the  discharge  of  duties  which  rested. on  him  by  the  terms  of  a  con- 
tract between  him  and  the  defendant,  which  had  been  entered  into 
jn  Alabama^  and  hence  was  an  Alabama  contract,  in  connection  with 
the  facts  that  plaintiff  was  and  is  a  citizen  of  this  state,  and  the  de- 
fendant  is  an  Alabama  corporation.  These  latter  facts — of  citizen- 
ship and  domicile,  respectively,  of  plaintiff*  and  defendant — are  of 
no  importance  in  this  connection,  it  seems  to  us,  further  than  this: 
they  may  tend  to  show  that  the  contract  was  made  here,  which  is  not 
controverted,  and,  if  the  plaintiff  has  a  cause  of  action  at  all.  he,  by 
reason  of  them,  may  prosecute  it  in  our  courts.  They  have  no  bear- 
ing on  the  primary  question  of  the  existence  of  a  cause  of  action,  and, 
as  that  is  the  question  before  us,  we  need  not  further  advert  to  the 
fact  of  plaintift''s  citizenship  or  defendant's  domicile. 


7 


7GA  part  of  the  opiiiion  has  been  omitted. 


/yn^ 


484  PARTICULAR  SUBJECTS.  (Part  2 

The  contract  was  that  plaintiff  should  serve  the  defendant  in  the 
capacity  of  a  brakeman  on  its  freight  trains  between  Birmingham,  Ala., 
and  Meridian,  Miss.,  and  should  receive  as  compensation  a  stipulated 
sum  for  each  trip  from  Birmingham  to  Meridian  and  return.  The 
theory  is  that -the  employers'  liability  act  becamea  part  of  this  contract, 
that  the  duties~ind  liabilities_whichit  prescribes  became  contractual 
duties  a"ndTiabiIities,  or  duties  and  liabilities  springing  out  of  the 
cOnfract,  and~lhatJffi£S.e^  duties "atte^  the_  execution  whenever 

its  perIonnance_was  reqjiired7~itr^l^^  as  in  Alabama, 

and^ffiat  the  liability  prescribed  for  a  failure  to  perform  any  of  such 
duties  attached  upon  such  failure  and  consequent  injury  wherever 
it  occurred,  and  was  enforceable  here,  because  imposed  by  an  Ala- 
bama contract,  notwithstanding  the  remission  of  duty  and  the  resulting 
injury  occurred  in  Mississippi,  under  whose  laws  no  liability  was  in- 
curred by  such  remission.  The  argument  is  that  a  contract  for  ser- 
vice is  a  condition  precedent  to  the  application  of  the  statute,  and  that, 
"as  soon  as  the  contract  is  made,  the  rights  and  obligations  of  the 
parties  under  the  employers'  act  became  vested  and  fixed,"  so  that 
"no  subsequent  repeal  of  the  law  could  deprive  the  injured  party  of 
his  rights,  nor  discharge  the  master  from  his  liabilities,"  etc.  If  this 
argument  is  sound,  and  it  is  sound  if  the  duties  and  liabilities  pre- 
scribed by  the  act  can  be  said  to  be  contractual  duties  and  obliga- 
tions at  all,  it  would  lead  to  conclusions,  the  possibility  of  which  has 
not  hitherto  been  suggested  by  any  court  or  law  writer,  and  which, 
to  say  the  least,  would  be  astounding  to  the  profession.  /[^^Flnstance, 
if  the  act  of  1885  become'5  a  part  of  every  contract  of  service  entered 
into  since  its  passage,  just  "as  if  such  law  were  in  so  many  words 
expressly  included  in  the  contract  as  a  part  thereof,"  as  counsel  in- 
sist it  did,  so  as  to  make  the  liability  of  the  master  to  pay  damages  for 
injuries  to  a  fellow  servant  of  his  negligent  employe  a  contractual 
obligation,  no  reason  can  be  conceived  why  the  law  existing  in  this 
regard  prior  to  the  passage  of  that  act  did  not  become  in  like  manner 
a  part  of  every  contract  of  service  then  entered  into,  so  that  every 
such  contract  would  be  deemed  to  contain  stipulations  for  the  non- 
liability of  the  master  for  injuries  flowing  from  the  negligence  of  a 
fellow  servant,  and  confining  the  injured  servant's  right  to  damages 
to  a  claim  against  his  negligent  fellow  servant;  the  former,  in  other 
words,  agreeing  to  look  alone  to  the  latter.  There  were  many  thou- 
sands of  such  contracts  existing  in  this  country  and  England  at  the 
time  when  statutes  similar  to  section  2590  of  our  Code  were  enacted. 
There  were,  indeed,  many  thousands  of  such  contracts  existing  in  Ala- 
bama when  that  section  became  the  law  of  this  state.  Each  of  these 
contracts,  if  the  position  of  plaintiff  as  to  our  statute  being  embodied 
into  the  terms  of  his  contract,  so  that  its  duties  were  contractual  du- 
ties and  its  liabilities  contractual  obligations  to  pay  money,  can  be 
maintained,  involved  the  assurances  of  organic  provisions,  state  and 
federal,  of  the  continued  nonliability  of  the  master  for  the  negligence 


Ch.  2) 


OBLIGATIONS. 


485 


of  his  servants,  notwithstanding  the  passage  of  such  statutes.  Yet 
these  statutes  were  passed,  and  they  have  been  appHed  to  servants  un- 
der pre-existing  contracts  as  fully  as  to  servants  under  subsequent 
contracts,  and  there  has  never  been  a  suggestion  even,  in  any  part  of 
the  common-law  world,  that  they  were  not  rightly  so  applied.  If  plain- 
tiff's contention  is  well  taken,  many  a  judgment  has  gone  on  the  rolls 
in  this  state  and  throughout  the  country,  and  been  satisfied,  which 
palpably  overrode  vested  rights,  without  the  least  suspicion  on  the 
part  of  court  or  counsel  that  one  of  the  most  familiar  ordinances  of 
the  fundamental  law  was  being  violated.  Nay,  more:  another  result, 
not  heretofore  at  all  contemplated,  would  ensue.  Contracts  for  ser- 
vice partly  in  Alabama  might  be  now  entered  into  in  adjoining  states, 
where  the  common-law  rule  still  obtains,  as  in  Mississippi,  for  instance, 
where  the  servant  has  no  right  to  recover  for  the  negligence  of  his 
fellow;  and  the  assumption  of  this  risk,  under  the  law,  becoming, 
according  to  the  argument  of  counsel,  a  contractual  obligation  to  bear 
it,  such  contracts  would  be  good  in  Alabama;  and,  as  to  servants  en- 
tering into  them,  our  statute  would  have  no  operation,  even  upon  negli- 
gence and  resulting  injury,  within  its  terms,  occurring  wholly  in  Ala- 
bama, And,  on  the  other  hand,  if  this  defendant  is  under  a  contract- 
ual obligation  to  pay  the  plaintiff  the  damages  sustained  by  him  be- 
cause of  the  injury  inflicted  in  Mississippi,  the  contract  could  be  of 
course  enforced  in  Mississippi,  and  damages  there  awarded  by  its 
courts,  notwithstanding  the  law  of  that  state  provides  that  there  can 
be  no  recovery,  under  any  circumstances  whatever,  by  one  servant 
for  the  negligence  of\  his  fellow  employe.  We  do  not  suppose  that 
such  a  proposition  ever  has  been  or  ever  will  be  made  in  the  courts 
of  Mississippi.  Yet  that  it  should  be  made  and  sustained  is  the  natural 
and  necessary  sequence  of  the  position  advanced  in  this  case. 

These  considerations  demonstrate  the  infirmity  of  plaintiff's  posi- 
tion in  this  connection,  and  serve  to  show  the  necessity  and  propriety 
of  the  conclusion  we  propose  to  announce  on  this  part  of  the  case. 
That  conclusion  is  that  the  duties  and  liabilities  incident  to  the  rela- 
tion between  the  plaintiff  and  the  defendant,  which  are  involved  in 
this  case,  are  not  imposed  by,  and  do  not  rest  in  or  spring  from,  the 
contract  between  the  parties.  The  only  office  of  the  contract,  under 
section  2590  of  the  Code,  is  the  establishment  of  a  relation  between 
them, — that  of  master  and  servant;  and  it  is  upon  that  relation, 
that  incident  or  consequence  of  the  contract,  and  not  upon  the  rights 
of  the  parties  under  the  contract,  that  our  statute  operates.  The  law- 
is  not  concerned  with  the  contractual  stipulations,  except  in  so  far 
as  to  determine  from  them  that  the  relation  upon  which  it  is  to  oper- 
ate exists.  Finding  this  relation,  the  statute  imposes  certain  duties 
and  liabilities  on  the  parties  to  it,  wholly  regardless  of  the  stipulations 
of  the  contract  as  to  the  rights  of  the  parties  under  it,  and,  it  may 
be  in  the  teeth  of  such  stipulations.  It  is  the  purpose  of  the  statute, 
and  must  be  the  limit  of  its  operation,  to  govern  persons  standing  in 


fc^ 


t^ 


*tK>>*'^^*-«H 


486  PARTICULAR  SUBJECTS.  (Part  2 

the  relation  of  master  and  servants  to  each  other,  in  respect  of  their 
conduct  in  certain  particulars  within  the  state  of  Alabama.  Mississip- 
pi has  the  same  right  to  establish  governmental  rules  for  such  per- 
sons within  her  borders  as  Alabama,  and  she  has  established  rules 
which  are  different  from  those  of  our  law;  and  the  conduct  of  such 
K  persons  towards  each  other  is,  when  its  legality  is  brought  in  ques- 

^  .  tion,  to  be  adjudged  by  the  rules  of  the  one  or  the  other  states  as  it 

'  "  falls  territorially  within  the  one  or  the  other.     The  doctrine  is  like 

that  which  prevails  in  respect  of  other  relations,  as  that  of  man  and 
wife.  Marriage  is  a  contract.  The  entering  into  this  contract  raises 
up  certain  duties  and-imposes  cerlaitu4iabilities^n_all  civilized  coun- 
tries.  What  these  duties  and  liabilities  are__at-  ^hp  pince  of  the  con- 
tract  are  de1:erminable_hy_inelaw  qf_thaL4ilace ;.._but^when  the  parties 
go  into^other  jurisdictions,  the  relation  created,  by  thecontract  und^r 
the  law_of  the  place  of  itS-execution  AadlLbe  recognized,  but  the  per- 
sonal  dutiea^  obligations^,  and  liabilities  Jxuudpnt  to  the  relation  are 
such  as  exist  unjderjthe  law  nf  jtlTe^jjirisdirtinrLJn^jwhich  an  act  .i^, 
dnnp_orjTnTltjj^d^^sjfn  jjip^je£^1ity,  effe^ty-QT-COnsequence  of  which  the 
question  arises.^  It  might  as  well  be  said,  where  there  is  a  mar- 
»  fiage  in  ^Alabama,  and  the  parties  remove  to  Mississippi,  and  the  wife 

there  makes  a  contract  which  is  void  in  Mississippi,  but  valid  under 
our  statute,  and  subsequently  they  return  to  Alabama,  that  our  courts 
will  enforce  that  contract;    or  if  such  husband,  while  in  Mississippi, 
does  an  act  which  is  innocuous  and  lawful  in  that  state,  but  which,  if 
done  here,  would  entail  liability  upon  him,  and  the  parties  afterwards 
return  here,  that  the  liability  imposed  by  our  laws  could  be  enforced 
here,  because  the  parties  entered  into  the  contract  here, — as  that  a 
master  is  liable  here  for  conduct  towards  his  servant  which  was  proper, 
or  at  least  involved  no  liability,  where  it  took  place,  simply  because  the 
^  *>  contract  which   created  the  relation  was  entered  into  in  this  state. 
^*^|i  .The  whole  argument  is  at  fault.    The  only  true  doctrine  is  that  each 
^i^V*       %vf*  sovereignty,  state  or  nation,  has  the  exclusive  power  to  finally  deter- 

(f  ^  x^  mine  and  declare  what  act  or  omissions  in  the  conduct  of  one  to  an- 

^jLju  other — whether  they  be  strangers,  or  sustain  relations  to  each  other 

which  the  law  recognizes,  as  parent  and  child,  husband  and  wife,  mas- 
ter and  servants,  and  the  like — shall  impose  a  liability  in  damages  for 
the  consequenb^injury,  and  the  courts  of  no  other  sovereignty  can  im- 
pute a  damnifying  quality  to  an  act  or  omission  which  afforded  no 
cause  of  action  where  it  transpired.  *  *  *  [The  learned  Justice 
here  commented  upon  Whitford  v.  Panama  R.  Co.,  23  N.  Y.  465,  and 
Gray  v.  Jackson,  51  N.  H.  9,  12  Am.  Rep.  1.] 

For  the  error  in  refusing  to  instruct  the  jury  to  find  for  the  defend- 
ant, if  they  believed  the  evidence,  the  judgment  is  reversed,  and  the 
cause  will  be  remanded.''^ 

7  7The  locus  delicti  is  where  the  damage  is  done  or  the  injury  is  received, 
and  not  \Yhere  the  death  ensues.    Van  Doreu  v.  Pennsylvania  R.  Co.,  93  Fed. 


Ch.  2) 


(i^ 


]^A^< 


^Oj^C'-n^" 


^     -^»  .  ^     (L    rtV        ^v 


V  ORLIGA 


OBLIGATIONS. 


DENNICK  V.  CENTRAL  R.  CO.  OF  NEW  JERSEY. 


(Supreme  Com-t  of_theJMteiLStates,  188^.     103  U.  S.  11,  26  L.  Ed.  439.) 


Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  New  York. 

Miller,  J.'^*  It  is  understood  that  the  decision  of  the  court  below 
rested  solely  upon  the  proposition  that  the  liability  in  a  civil  action 
for  damages  which,  under  the  statute  of  New  Jersey,  is  imposed  upon 
a  party,  by  whose  wrongful  act,  neglect,  or  default  death  ensues, 
can  be  enforced  by  no  one  but  an  administrator,  or  other  personal 
representative  of  the  deceased,  appointed  by  the  authority  of  that 
State.  And  the  soundness  or  unsoundness  of  this  proposition  is  what 
we  are  called  upon  to  decide. 

It  must  be  taken  as  established  by  the  record  that  the  accident  by 
which  the  plaintiff's  husband  came  to  his  death  occurred  in  New 
Jersey,  under  circumstances  which  brought  the  defendant  within  the 
provisions  of  the  first  section  of  the  act  making  the  company  liable 
for  damages,  notwithstanding  the  death. 

It  can  scarcely  be  contended  that  the  act  belongs  to  the  class^of 


JikY*^ 


au*>*^^ 


M^-t^i^} 


criininar laws  which  caji  only  be^en forced  byijhfi^f'nnrtc;  ni  thp  .State. 
where  ttie'off ence  was^ committed,  for  it  is,  though  a  statu tory_re_medy,^ 
a  civil  action  to  recover  damages  for  a  ciyiHniury. 

It  is~indeed^  a  right  dependenT'ioTeTy'onthe  statute  of  the  State; 
but  when  the  act  is  done  for  which  the  law  says  the  person  shall  be 
liable,  and  the  action  by  which  the  remedy  is  to  be  enforced  is  a 
personal  and  not  a  real  action,  and  is  of  that  character  which  the 
law  recognizes  as  transitory  and  not  local,  we  cannot  see  why  the 
defendant  may  not  be  held  liable  in  any  court  to  whose  jurisdiction 
he  can  be  subjected  by  personal  process  or  by  voluntary  appearance, 
as  was  the  case  here. 

It  is  difficult  to  understand  how  the  nature  of  the  remedy,  or  the 
jurisdiction  ol  the  courts^to  enforce^  it,  is  in  _any_manner  dependent 
on  the_question  whether  it  is  a  statutory  right  oiL,a^-CQairaon-law  right. 

Wherever,  by  eitherjl^p  ^nnitrion__law  or  the  statute  la\v~of  a  5vtate7" 
a  right  of  action  has__becnme.  fixed  and  a.  legal  liability  incurred,  that 
liability  may  be  enforced  and  the  right  of  action  pursued  in  any  court 


r^ 


) 


260,  35  C.  O.  A.  282  (1899).  But  see  Hoodmacher  v.  Lehigh  Valley  R.  Co.,  218 
Pa.  21,  66  Atl.  975  (1907).  Nor  where  the  act  which  occasioued  such  iu.lury 
or  damage  takes  place.  Cameron  v.  Vandergriff,  53  Ark.  381,  13  S.  W.  1002 
(1890);  Alabama  Great  Southern  R.  Co.  v.  Carroll,  97  Ala.  120,  11  South. 
803,  18  L.  R.  A.  4a3.  38  Am.  St.  Rep.  163  (1892).  See  Leonard  v.  Decker  (D. 
C.)  22  Fed.  741  (1884). 

In  Germany  it  has  been  held  that  where  the  resulting  injury  occurs  in  a 
state  other  than  the  one  where  the  act  was  committed,  an  action  will  lie  if  it 
is  a  tort  under  the  law  of  either  state.  R.  G.,  Dec.  22,  1902  (13  Niemeyer,  171). 
See,  also,  R.  G.,  Nov.  8,  1906  (IS  Niemeyer.  159). 

7s  The  statement  of  facts  has  been  omitted. 


488  PARTICULAR  SUBJECTS.  (Part  2 

which  has  jurisdiction  of  such  matters  and  can  obtain  Jurisdiction  of 
the  parties. 

The  action  in  the  present  case  is  in  the  nature  of  trespass  to  the 
person,  always  held  to  be  transitory,  and  the  venue  immaterial.  The 
local  court  in  New  York  and  the  Circuit  Court  of  the  United  States 
for  the  Northern  District  were  competent  to  try  such  a  case  when 
the  parties  were  properly  before  it.  Mostyn  v.  Fabrigas,  1  Cowp. 
161;  Rafael  v.  Verelst,  3  W.  Bl.  983,  1055;  McKenna  v.  Fisk,  1 
How.  241,  11  L.  Ed.  117.  We  do  not  see  how  the  fact  that  it  was  a 
statutory  right  can  vary  the  principle.  A  party  legally  liable  in  New 
Jersey  cannot  escape  that  liability  by  going  to  New  York.  If  the 
liability  to  pay  money  was  fixed  by  the  law  of  the  State  where  the 
transaction  occurred,  is  it  to  be  said  it  can  be  enforced  nowhere  else 
because  it  depended  upon  statute  law  and  not  upon  common  law? 
It  would  be  a  very  dangerous  doctrine  to  establish,  that  in  all  cases 
where  the  several  States  have  substituted  the  statute  for  the  com- 
mon law,  the  liability  can  be  enforced  in  no  other  State  but  that 
where  the  statute  was  enacted  and  the  transaction  occurred.  The 
common  law  never  prevailed  in  Louisiana,  and  the  rights  and  reme- 
dies of  her  citizens  depend  upon  her  civil  code.  Can  these  rights 
be  enforced  or  the  wrongs  of  her  citizens  be  redressed  in  no  other 
State  of  the  Union?  The  contrary  has  been  held  in  many  cases.  See 
Ex  parte  Van  Riper,  20  Wend.  (N.  Y.)  614;  Lowry  v.  Inman,  46  N. 
Y.  119 ;  Pickering  v.  Fisk,  6  Vt.  102 ;  Nashville  &  C.  R.  v.  Spray- 
berry,  8  Baxt.  (Tenn.)  341,  35  Am.  Rep.  705;  Great  Western  Ry.  Co. 
V.  Miller,  19  Mich.  305. 

But  it  is  said  that,  conceding  that  the  statute  of  the  State  of  New 
Jersey  established  the  hability  of  the  defendant  and  gave  a  remedy, 
the  right  of  action  is  limited  to  a  personal  representative  appointed 
in  that  State  and  amenable  to  its  jurisdiction. 

The  statute  does  not  say  this  in  terms.  "Every  such  action  shall 
be  brought  by  and  in  the  names  of  the  personal  representatives  of  such 
deceased  person."  It  may  be  admitted  that  for  the  purpose  of  this 
case   the  words   "personal   representatives"   mean   the  administrator. 

The  plaintiff  is,  then,  the  only  personal  representative  of  the  de- 
ceased in  existence,  and  the  construction  thus  given  the  statute  is, 
that  such  a  suit  shall  not  be  brought  by  her.  This  is  in  direct  con- 
tradiction of  the  words  of  the  statute.  The  advocates  of  this  view 
interpolate  into  the  statute  what  is  not  there,  by  holding  that  the 
personal  representative  must  be  one  residing  in  the  State  or  appointed 
by  its  authority.  The  statute  says  the  amount  recovered  shall  be 
for  the  exclusive  benefit  of  the  widow  and  next  of  kin.  Why  not 
add  here,  also,  by  construction,  "if  they  reside  in  the  State  of  New 
Jersey" ? 

It  is  obvious  that  nothing  in  the  language  of  the  statute  requires 
such  a  construction.  Indeed,  by  inference,  it  is  opposed  to  it.  The 
first  section  makes  the  liability  of  the  corporation  or  person  absolute 


Ch.    2)  OBLIGATIONS.  489 

where  the  death  arises  from  their  negligence.  Who  shall  say  that 
it  depends  on  the  appointment  of  an  administrator  within  the  State? 

The  second  section  relates  to  the  remedy,  and  declares  who  shall 
receive  the  damages  when  recovered.  These  are  the  widow  and  next 
of  kin.  Thus  far  the  statute  declares  under  what  circumstances  a 
defendant  shall  be  liable  for  damages,  and  to  whom  they  shall  be  paid. 
In  this  there  is  no  ambiguity.  But  fearing  that  there  might  be  a  ques- 
tion as  to  the  proper  person  to  sue,  the  act  removes  any  doubt  by  desig- 
nating the  personal  representative.  The  plaintiff  here  is  that  repre- 
sentative. Why  can  she  not  sustain  the  action  ?  Let  it  be  rpmprfihprpd 
that  this  is  not  a  case  of  an  administrator,  appointed  in  _one  State, 
suing  in  that  "cHaracteTj^The  courts  of  anotherL_State^_jadlliaut--afty 
authority  tronTthe  latter.  iFlFthF'general  rule  that  this  cannot  be 
done. 

The  gi-pfh^rp^w^'^  hrnuorht  by  the  administratrix  in  a  court  oL-Lke 
State  wlLlch  hacLappnintprI  Vipr^  and  Q-f  rn^^r^f  n£t-<»w4i-ohjprtinn   rnnlrl 

be  made^__ — 

If,  then,  the_def£ndant__was  liable  to  be_sued  in  the  courts  of  the 
State  of  New  York  onthiscause  oFaHion^and  the  suit  could  only 
be  brousht  bv"~such  personal  represelitative  of  the  deceased,  and  if 


the  plaTnfilFis  the  personal  representative,  whom  tlie_cgurts  of  that 
State  are  boun^^to^recognizeTon^what  princip.1p  ran  her  .right  tojnainj 
tain  the  action  Se  denied? 

So  far  as'any  reason  has  been  given  for  such  a  proposition,  it 
seems  to  be  this :  that  the  foreign  administrator  is  not  responsible  to 
the  courts  of  New  Jersey,  and  cannot  be  compelled  to  distribute  the 
amount  received  in  accordance  with  the  New  Jersey  statute. 

But  the  courts  of  New  York  are  as  capable  of  enforcing  the  rights 
of  the  widow  and  next  of  kin  as  the  courts  of  New  Jersey.  And  as 
the  court  which  renders  the  judgment  for  damages  in  favor  of  the 
administratrix  can  only  do  so  by  virtue  of  the  New  Jersey  statute,  so 
any  court  having  control  of  her  can  compel  distribution  of  the 
amount  received  in  the  manner  prescribed  by  that  statute. 

Again :  it  is  said  that,  by  virtue  of  her  appointment  in  New  York, 
the  administratrix  can  only  act  upon  or  administer  that  which  was  of 
the  estate  of  the  deceased  in  his  lifetime.  There  can  be  no  doubt  that 
much  that  comes  to  the  hands  of  administrators  or  executors  must 
go  directly  to  heirs  or  devisees,  and  is  not  subject  to  sale  or  distribu- 
tion in  any  other  mode,  such  as  specific  property  devised  to  individuals, 
or  the  amount  which  by  the  legislation  of  most  of  the  States  is  set  apart 
to  the  family  of  the  deceased,  all  of  which  can  be  enforced  in  the 
courts ;  and  no  reason  is  perceived  why  the  specific  direction  of  the  law 
on  this  subject  may  not  invest  the  administrator  with  the  right  to  re- 
ceive or  recover  by  suit,  and  impose  on  him  the  duty  of  distributing  un- 
der that  law.  There  can  be  no  doubt  that  an  administrator,  clothed  with 
the  apparent  right  to  receive  or  recover  by  suit  property  or  money,  may 
be  compelled  to  deliver  or  pay  it  over  to  some  one  who  establishes  a 


490  PARTICULAR  SUBJECTS.  (Part  2 

better  right  thereto,  or  that  what  he  so  recovers  is  held  in  trust  for 
some  one  not  claiming  under  him  or  under  the  will.  And  so  here. 
The  statute  of  New  Jersey  says  the  personal  representative  shall 
recover,  and  the  recovery  shall  be  for  the  benefit  of  the  widow  and 
next  of  kin.  It  would  be  a  reproach  to  the  laws  of  New  York  to  say 
that  when  the  money  recovered  in  such  an  action  as  this  came  to  the 
hands  of  the  administratrix,  her  courts  could  not  compel  distribution 
as  the  law  directs. 

It  is  to  be  said,  however,  that  a  statute  of  New  York,  just  like  the 
New  Jersey  law,  provides  for  bringing  the  action  by  the  personal 
representative,  and  for  distribution  to  the  same  parties,  and  that  an 
administrator  appointed  under  the  law  of  that  State  would  be  held 
to  have  recovered  to  the  same  uses,  and  subject  to  the  remedies  in 
his  fiduciary  character  which  both  statutes  prescribe. 

We  are  aware  that  Woodard  v.  Michigan  S.  &  N.  I.  R.  Co.,  10 
Ohio  St.  121,  asserts  a  different  doctrine,  and  that  it  has  been  followed 
by  Richardson  v.  New  York  Cent.  R.  Co.,  98  Mass.  85,'^»  and  Mc- 
Carthy v.  Chicago,  R.  I.  &  P.  R.  Co.,  18  Kan.  46,  26  Am.  Rep.  742. 
The  reasons  which  support  that  view  we  have  endeavored  to  show 
are  not  sound.  These  cases  are  opposed  by  the  latest  decision  on  the 
subject  in  the  Court  of  Appeals  of  New  York,  in  the  case  of  Leonard 
V.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep.  491,  of  which 
we  have  been  furnished  with  a  certified  copy. 

The  right  to  recover  for  an  injury  to  the  person,  resulting  in  death, 
is  of  very  recent  origin,  and  depends  wholly  upon  statutes  of  the  dif- 
ferent States.  The  questions  growing  out  of  these  statutes  are  new, 
and  many  of  them  unsettled.  Each  State  court  will  construe  its  own 
statute  on  the  subject,  and  differences  are  to  be  expected.  In  the 
absence  of  any  controlling  authority  or  general  concurrence  of  deci- 
sion, this  court  must  decide  for  itself  the  question  now  for  the  first 
time  presented  to  it,  and  with  every  respect  for  the  courts  which  have 
held  otherwise,  we  think  that  sound  principle  clearly  authorizes  the 
administrator  in  cases  like  this  to  maintain  the  action. 

Judgment  reversed,  with  directions  to  award  a  new  trial.*** 

7  8  But  see  Davis  v.  New  York  &  N.  E.  R.  Co.,  143  Mass.  301,  9  N.  E.  815,  58 
Am.  Kep.  138  (1887) ;  Higgins  v.  Central  N.  E.  &  W.  R.  Co.,  155  Mass.  176,  29 
N.  E.  534,  31  Am.  St.  Rep.  544  (1892). 

80A  personal  representative  appointed  in  the  state  in  which  the  deceased 
had  his  domicile  may  sue  in  the  jurisdiction  where  he  was  appointed.  Leon- 
ard V.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  48,  38  Am.  Rep,  491  (1881);  Nel- 
son V.  Chesapeake  &  O-  R.  Co..  88  Va.  971,  14  S.  E.  838,  15  L,  R.  A.  583  (1892). 
Contra :  Woodard  v.  Michigan  S.  &  N.  R.  Co.,  10  Ohio  St.  121  (1859).  A  per- 
sonal representative  appointed  in  another  .iurisdiction  has  been  permitted  to 
sue  without  reappointment  on  the  ground  that  he  sued  as  trustee  for  the  bene- 
ficiaries named  in  the  statute.  Boulden  v.  Pennsylvania  R.  Co.,  205  Pa.  264. 
54  Atl.  90G  (1903) ;  Connor  v.  New  York,  N.  H.  &  H.  R.  Co.  (R.  I.)  08  Atl.  481 
(1908).    Contra:   Southwestern  R.  Co.  v.  Paulk,  24  Ga.  356  (1858). 

As  to  whether  an  administi-ator  may  be  appointed  Ijy  tlie  courts  of  the  state 
in  which  the  cause  of  action  arose  if  the  deceased  left  no  other  property  in 
the  state,  see  .Jordan  v.  Chicago  &  N.  W.  R.  Co.,  1  L.  R.  A.  (N.  S.)  885  (1905), 
and  note.     See,  also,  Cooper  v.  Gulf,  C.  &  S.  P.  R.  Co.,  93  S.  W.  201   (-1906). 


Ch.  2) 


OBLIGATIONS. 


491 


POWELL  V.  GREAT  NORTHERN  R.  CO. 


3'^ 


(Supreme  Court  of  Minnesota,  3907.     102  Minn.  44S,  113  N.  W.  1017.) 

Start,  C.  J.  Albert  D.  Powell,  a  brakeman  employed  by  the  de- 
fendant, a  ^Minnesota  corporation,  was  killed  in  the  state  of  North 
Dakota,  while  acting  as  such,  by  the  admitted  negligence  of  other 
employes  of  the  defendant,  for  which  it  is  liable  under  the  fellow 
servant  statute  of  that  state.  This  action  was  brought  in  the  district 
court  of  the  county  of  Ramsey,  in  this  state,  by  the  widow  of  the  de- 
ceased, to  recover  damages  for  such  negligence  by  virtue  of  a  statute 
of  North  Dakota  hereinafter  referred  to.  She  obtained  a  verdict  for 
$11,000,  and  defendant  appealed  from  an  order  denying  its  motion 
for  a  new  trial. 

The  statute  of  North  Dakota  (found  in  the  Revised  Codes)  is  in 
these  words: 

"Sec.  5974.  Whenever  the  death  of  a  person  shall  be  caused  by  a 
wrongful  act,  neglect  or  default  and  the  act,  neglect  or  default  is 
such  as  would,  if  death  had  not  ensued,  have  entitled  the  party  injured 
to  maintain  an  action  and  recover  damages  in  respect  thereof,  then 
and  in  every  such  case,  the  person  who,  or  the  corporation  or  company 
which,  would  have  been  liable  if  death  had  not  ensued,  shall  be  liable 
in  an  action  for  damages,  notwithstanding  the  death  of  the  person  in- 
jured, and  although  the  death  shall  have  been  caused  under  such 
circtunstances  as  amount  in  law  to  felony. 

"Sec.  5975.  In  such  actions  the  jury  shall  give  such  damages  as 
they  think  proportionate  to  the  injury  resulting  from  the  death  to  the 
persons  entitled  to  the  recovery. 

"Sec.  5976.  The  action  shall  be  brought  by  the  following  persons 
in  the  order  named:  First.  The  surviving  husband  and  wife.  Second. 
The  surviving  children,  if  any.     Third.  The  personal  representative. 

"Sec.  5977.  The  amount  recovered  shall  not  be  liable  for  the  debts 
of  the  decedent,  but  shall  inure  to  the  exclusive  benefit  to  his  heirs  at 
law,  in  such  shares  as  the  judge  before  whom  the  case  is  tried  shall 
fix  in  the  order  for  judgment,  and  for  the  purpose  of  determining 
such  shares  the  judge  may  after  the  trial  make  any  investigation  which 
he  deems  necessary." 

It  is  conceded  that  uponjihe  death  of  plaintiff's  husband  a  cause 
of  acfion  at  once  accrued  to_Jier  in  North  Dakota_J>y  .virtue  of  _this 
statute,  btirit  is  contended  thafthe  statute  is  so  dissimilar  to  our_own 
on  the  same  subject  that^er  right  of  action  oughFiiot  to  be  ,£nforre<-i 
in  our  courts.  This  is  substantially  the  only  question  raised  by  the 
record.  A  right  of  action  accruing  to  a  party  under  a  statute  of  an- 
other state  will,  as  a  matter  of  comity,  be  enforced  in  the  courts  of 
this  state,  when  jurisdiction  can  be  had  and  justice  done  between  the 
parties,  if  such  statute  be  not  contrary  to  the  public  policy  of  this 
state;   that  is,  against  good  morals,  or  natural  justice,  or  the  interest 


4  a  My,<.  <S9/ 


at 


492  PARTICULAR  SUBJECTS.  (Part  2 

of  this  state  or  its  citizens.  Herrick  v.  Minneapolis  &  St.  L.  Ry.  Co., 
31  Minn.  11,  16  N.  W.  413,  47  Am.  Rep.  771;  Midland  Co.  v.  Broat, 
50  Minn.  563,  53  N.  W.  973,  17  L.  R.  A.  313 ;  Nicholas  v.  Burlington, 
C.  R.  &  N.  Ry.  Co.,  78  Minn.  43,  80  N.  W.  776 ;  Negaubauer  v.  Great 
Northern  Ry.  Co.,  93  Minn.  184,  99  N.  W.  630,  104  Am.  St.  Rep. 
674;  Stewart  v.  Baltimore  &  O.  R.  Co.,  168  U.  S.  445,  18  Sup.  Ct. 
105,  43  L.  Ed.  537;  Rick  v.  Saginaw  Bay  Towing  Co.,  133  Mich.  337, 
93  N.  W.  633,  103  Am.  St.  Rep.  433.  The  statute  of  anoihex_state 
is  not  contrary  to  the  public  policy  of  this  state  smiply  because  it  is 
materiall}^_unl.ike  our  own,  nor  is  it  so  even  if  jwe  have  no  statute  on 
the  same  subject  that  it  covers.  In  the  Herrick  Case  a  right  of  action, 
given 'by~a~statnte^f  the  Itate  of  Iowa  to  an  employe  of  a  railway  com- 
pany against  it  for  the  recovery  of  damages  for  injuries  sustained  by 
him  by  reason  of  the  negligence  of  a  fellow  servant,  was  enforced  in 
the  courts  of  this  state,  although  at  the  time  the  law  of  this  state  was 
the  common  law,  which  denied  a  servant  any  relief  from  his  master 
for  the  negligence  of  his  fellow  servant.  Nor  is  it  any  reason  for  re- 
fusing to  enforce  a  right  of  action  given  by  the  statute  nTnnnfheF 
state  that  it  is  given_to^a_different  person  ox  party  than  it  is  by  our 
own  sJaiutc'^'THis  was  expressly  held  in  the  Nicholas  CaseT'  TEe^ 
claims  of  the  defendant  must  be  tested  by  the  rules  we  have  stated. 

Its  first  claim  is,  in  effect,  that  the  provision  of  the  statute  of  North 
Dakota,  which  declares  that  the  damages  recovered  shall  inure  to  the 
exclusive  benefit  of  the  heirs  at  law  of  the  deceased  in  such  shares 
as  the  trial  judge  shall  fix  in  the  order  for  judgment,  is  so  dissimilar 
to  the  provisions  of  our  own  statutes  that  the  courts  of  this  state  can- 
not give  it  effect,  and  therefore  they  will  not  entertain  the  action. 
This  cause  of  action  accrued  upon  the  death  of  the  deceased  in  North 
Dakota,  and  the  right  of  the  plaintiff  to  enforce  it  was  then  absolute. 
The  determination  of_the  respective  shares  of  the  heirs  by  the  trial 
judge  IS  a  mere  incident  to  the  entry  of  judgment  after  the  liability 
o't  the  cleTendaivt  and  the"^mount  there"oTliavenbeen  determined  b>y  THe 
veMTcl^  Such  determination  after  the  trial  m  no  manner  affects  or 
InLcicrsts  the  defendant.  The  court  can  do  full  justice  between  the 
parties  to  the  action,  whether  or  not  it  fixes  in  the  judgment  the 
amount  which  shall  inure  to  the  benefit  of  each  heir.  In  any  event, 
the  judgment  must  be  entered  in  favor  of  the  plaintiff  and  against 
the  defendant  for  the  amount  of  the  verdict.  When  the  defendant 
pays  to  the  plaintiff  the  amount  of  the  judgment  its  liability  is  ab- 
solutely extinguished,  and  it  has  no  more  concern  as  to  the  preserva- 
tion or  distribution  of  the  fund  than  the  defendant,  in  an  action  under 
our  statute  to  recover  by  a  father  for  injuries  to  his  minor  child,  has 
in  the  determination  by  the  court  of  the  question  whether  the  plaintiff 
shall  give  security  before  the  amount  of  the  judgment  is  paid  to  him. 
Lathrop  v.  Schutte,  61  Minn.  196,  63  N.  W.  493.  It  is  quite  obvious 
that  the  provisions  of  the  statute  of  North  Dakota  as  to  the~3elermina- 
tion^npie  respeclrve  shareTof  the  heirs  in  the  amount  recovered  is~ 


Ch.    2)  OBLIGATIONS.  493 

a  mere_iiidd£ri±_,to_the  enti^.of  jud2m?J}i>_  with  which  the  courts  oj 
this  state  will  comply,  and  that  itjs_nnt  rnnfrary  to  g-nod  morals^  or, 
nattirUl  iusTiceTor  thejnterest  of  the  state  or  its  citizens. 

The~defenciant  further  claims  tlmt  it  is  against  the  public  policy  of 
this  state  to  allow  the  recovery  of  more  than  $5,000  damages,  the 
limit  in  our  statute,  for  the  death  of  a  person  by  the  wrongful  act  or 
neglect  of  another.  This  question  is  settled  adversely  to  the  defend- 
ant by  the  Herrick  Case,  for  in  that  case  nothing  whatever  could  have 
been  recovered  under  the  laws  of  this  state,  and  yet  the  statute  of 
Iowa,  giving  what  our  laws  then  wholly  denied,  was  enforced.  The 
greater  includes  the  less.  In  the  Negaubauer  Case  the  time  limit 
for  bringing  the  action  in  the  statute  of  Montana,  although  greater 
than  that  in  our  own  statute,  was  given  effect.  We  hold  that  the  fact 
that  the  amount  of  the  recovery  in  actions  of  this  kind  is  limited  by 
our  statute,  but  not  bv  the  statute  of  North  Dakota,  attords  no  reason 
why  th^courts  of  this  state  should  not  enforce  in  its  entirety  the 
right  ofaction  gTven  bv  the 'statute  of  North  Dakota. 

The  last  contention  of  the  defendant's  counsel  is  that  the  trial 
court  erred  in  refusing  to  permit  him  to  discuss  our  own  statute  as 
to  damages.  The  ruling  was  manifestly  right,  for  the  statute  of  the 
forum  had  nothing  to  do  with  the  damages.  ^-^ 

Order  affirmed.^ ^  .  W^^*'^  a.    • 


(Supreme  Court  of  the  United  States,  1904.     194  U.  S.  120,  24  Sup.  Ct.  581, 


^«^ 


^  ^^^  i>^ 


SLATER  V.  MEXICAN  NAT.  R.  CO.        ^     ^^^^^^  "^  0^^ Ljk*'^ 

states,  1904.     194  U.  S.  120,  24  Sup.  Ct.  581,  ^j^         ^ . 

48  L.  Ed.  900.)  \/^^    ^  X^ 

Holmes,  ]}-     This  is  an  action  brought  in  the  United  States  cir-    yjS^y^  \/^ 


dren  of  William  H.  Slater,  who  was  employed  by  the  defendant  as     ^^"1     ^^  ^ 
a  ^witrhman  on  its  road.  ;ind  was  killed  thronp"h  the  defendant's  nep"-       1  .l«\  *         .1 1/^   ' 


a  switchman  on  its  road,  and  was  killed  through  the  defendant's  neg 


&' 


cuit  court  for  the  northern  district  of  Texas  by  citizens  and  residents  ^^ fo^  Qjl 
of  Texas  against  a  Colorado  corporation  operating  a  railroad  from  6^,/^^  jJ'^^^ 
Texas  to  the  City  of  Mexico.     The  plaintiffs  are  the  widow  and  chil-  ~mJi    ^iJ^ 

ligence  while  coupling  two  freight  cars  at  Nucvo  Laredo,  in  Mexico.     ^    q  ^\J*       ^ 
This  action  is  to  recover  damages  for  the  death.     The  laws  of  Mexi-    es^  " 

1 

) 
moneys  so  recovered.    In  re  Coe's  Estate,  130  Iowa,  307,  106  N.  W.  743,  4  L. 
R.  A.  (N.  S.)  814,  114  Am.  St.  Rep.  416  (1906) ;    Charlton  v.  St.  Louis  &  S.  F.  \^/S^       Irt^ 
R.  Co..  200  Mo.  413,  98  S.  W.  529  (1906).     Compare  In  re  Williams'  Estate,  .-V^j 

130  Iowa,  553,  107  N.  W.  608  (1906).  .        CnT        j/^ 

The  lex  domicilii  of  the  tort-feasor,  and  not  the  lex  loci  delicti,  has  been  *J^         Qjf^ 
held  to  govern  the  question  whether  the  action  will  survive  against  his  estate. 
Whitten  v.  Bennett  (C.  C.)  77  Fed.  271  (1896). 

82A  part  of  the  opinion  has  been  omitted. 


CO  were  set  forth  in  the  plaintiffs'  petition,  and  the  defendant  demurred       '       iM^  Q 

//I 

sembie.    But  see  \vooaen  v.  vvesrem  in.  i.  &  r.  u.  «^o.,  1:^0  xn.  x.  lu,  .^o  i^.  rj.  ^iu^'        y 
"lMjri3  L.  R.  A.  458,  22  Am.  St.  Rep.  803  (1891).    And  the  distribution  of  the^^"^^  JT 

mr.r.oT'c  or.  T-onniTorcfl       Tn   vo.  Trip's  THst-atp    1.30  Tnwa.  .^07.  106  N.  W.  743.  4  L.  V^ 


SI  The  lex  loci   delicti   will   determine   the   amount   of  damages.     North-'-t/^ 
V   V         eru  Pac.  R.  Co.  v.  Babcock,  154  U.  S.  190,  14  Sup.  Ct.  978.  38  L.  E<i.  958  (1894).        r^   h 
'^  1^    "  lemble.    "But  see  Wooden  v.  VVestem  N.  S..  &  P.  R.  Co.,  126  N.  Y.  10.  'M  ^.  K. '  JDJ^ 
I        "TTT'irr^s  T,   -R    A    4.-.«.  22  Am.  St.  Ren.  803  (1891).     And  the  distribution  of  the^^"*^ 


^^ 


j4' 

&£m>  o^    illl-  C'.    /(^(^ 


'   '  i  col)  "^'^^T^ 


^ 


494  PARTICULAR  SUBJECTS.  (Part  2 

on  the  ground  that  the  cause  of  action  given, by  the  Mexican  laws  was 
not  transitory,  for  reasons  sufficiently  stated.  The  demurrer  was 
overruled,  and  the  defendant  excepted.  A  similar  objection  was 
taken  also  by  plea  setting  forth  additional  sections  of  the  Mexican 
statutes.  A  demurrer  to  this  plea  was  sustained,  subject  to  exception. 
The  same  point  was  raised  again  at  the  trial  by  a  request  to  direct 
a  verdict  for  the  defendant.  The  judge  who  tried  the  case  instructed 
the  jury  that  the  damages  to  be  recovered,  if  any,  were  to  be  measured 
by  the  money  value  of  the  life  of  the  deceased  to  the  widow  and 
children,  and  the  jury  returned  a  verdict  for  a  lump  sum,  apportioned 
J:o  the  several  plaintiffs.  The  judge  and  jury  in  this  regard  acted  as 
prescribed  by  the  Texas  Rev.  Stat.  art.  3027.  The  case  then  was  taken 
to  the  circuit  court  of  appeals,  where  the  judgment  was  reversed  and 
the  action  ordered  to  be  dismissed.  Mexican  Nat.  R.  Co.  v.  Slater, 
53  C.  C.  A.  239,  115  Fed.  593. 

There  is  no  need  to  encumber  the  reports  with  all  the  statutes  in 
the  record.  The  main  reliance  of  the  plaintiffs  is  upon  the  following 
agreed  translation  from  the  Penal  Code,  bk.  2.  "Civil  Liability  in 
Criminal  Matters."  "Art.  301.  The  civil  liability  arising  from  an  act 
or  omission  contrary  to  a  penal  law  consists  in  the  obligation  imposed 
on  the  party  liable,  to  make  (1)  restitution,  (2)  reparation,  (3)  indem- 
nization,  and  (4)  payment  of  judicial  expenses." 

"Art.  304.  Reparation  comprehends:  Payment  of  all  damages 
caused  to  the  injured  party,  his  family,  or  a  third  person  for  the  vio- 
lation of  a  right  which  is  formal,  existing,  and  not  simply  possible, 
if  such  damages  are  actual,  and  arise  directly  and  immediately  from 
the  act  or  omission  complained  of,  or  there  be  a  certainty  that  such 
act  or  omission  must  necessarily  cause  a  proximate  and  inevitable 
consequence."  Coupled  with  these  are  articles  making  railroad  com- 
panies answerable  for  the  negligence  of  their  servants  within  the 
scope  of  the  servants'  employment.  Penal  Code,  bk.  2,  arts.  330,  331 ; 
regulations  for  the  construction,  maintenance,  and  operation  of  rail- 
roads, art.  184.  We  assume  for  the  moment  that  it  was  sufficiently 
alleged  and  proved  that  the  killing  of  Slater  was  a  negligent  crime 
within  the  definition  of  article  11  of  the  Penal  Code,  and,  therefore, 
if  the  above  sections  were  the  only  law  bearing  on  the  matter,  that 
they  created  a  civil  liability  to  make  reparation  to  any  one  whose  rights 
were  infringed. 

As  Texas  has  statutes  which  give  an  action  for  w^rongfully  causing 
deatli,  of^ourse  the?e~Ts  no  general  objection  of  policy  to  enforcing 
such  a  liability  theTeralthough  Tf^jose  in  anotlier  jurisdiction^  Stew- 
art  vrEaltimore  &  O;  R."  Co.,  1G8  U.  S.  445,  18  Sup.'Ct.  lOS",  42  L.  Ed. 
537.  But  when  such  a  liability  is  enforced  in  a  jurisdiction  foreign  to 
the  place  of  the  wrongful  act,  obviously  that  does' not  mean  that  the 
act  in  any  degree  is  subject  to  the  lex  fori,  with  regard  to  either 
its  quality  or  its  consequences.  On  the  other  hand,  it  equally  little 
means  that  the  law  of  the  place  of  the  act  is  operative  outside  its  own 


Ch.  2) 


OBLIGATIONS. 


495 


territory.    The  theory  of  the  foreign  suit  is  that,  aUhough  the  act  com- 
plained of3:ai^*«bj«€t25I!SoIl£w^^ 

to  an  oHhgation,  an  obhgatio7~wHicli  Hke  other  obHgations,  follows 
the  per5oh7  and  rnay  be  enforced  wherever  the  person  may  be  found. 
Stout  V.  \Vood,  1  Blackf.  ( Ind. )  "tTT Dennick  v.  CentranRrra:7l03 
U.  S.  11,  18,  26  Iv.  Ed.  439,  442.  But  as  the  only  source  of  this  ob- 
ligation is  the  law  of  the  place  of  the  act,  it  follows  that  that  law  de- 
termines not  merely  the  existence  of  the  obligation  (Smith  v.  Condry, 
1  How.  28,  11  L.  Ed.  35),  but  equally  determines  its  extent.  _Jt 
seems  to  us  unjustto  allow  a  plaintiff  to  come  here  absolutelydepend- 
ing  on  theforeign  law  for  tlip  -Fnnnrlatinrt  of  his  c^se,  andj^t  to  denYi 
the  defeiiHant  the  benefit  of  whatever  limitations  on  his  liability  that 
law " wquldumpose!  In  Northern  Pac.  R.  (Jo.  v.  Babcock,  154  U.  S. 
11107199714  Sup.  Ct.  978,  38  L.  Ed.  958,  961,  an  action  was  brought 
in  the  district  of  Minnesota  for  a  death  caused  in  Montana,  and  it  was 
held  that  the  damages  were  to  be  assessed  in  accordance  with  the  Mon- 
tana statute.  Therefore  we  may  lay  on  one  side  as  quite  inadmissible 
the  notion  that  the  law  of  the  place  of  the  act  may  be  resorted  to  so 
far  as  to  show  that  the  act  was  a  tort,  and  then  may  be  abandoned, 
leaving  the  consequences  to  be  determined  according  to  the  accident 
of  the  place  where  the  defendant  may  happen  to  be  caught.  See 
further,  Pullman  Palace  Car  Co.  v.  Lawrence,  74  Miss.  782,  801, 
802,  22  South.  53;  Morris  v.  Chicago,  R.  I.  &  P.  R.  Co.,  6o  Iowa,  727, 
731,  23  N.  W.  143,  54  Am.  Rep.  39  ;  ^lexican  Nat.  Ry.  Co.  v.  Jackson, 
89  Tex.  107,  33  S.  W.  857,  31  L.  R.  A.  276,  59  Am.  St.  Rep.  28  ;  Bruce's 
Adm'r  v.  Cincinnati  R.  Co.,  83  Ky.  174,  181 ;  Holmes  v.  Barclay,  4  La. 
Ann.  64;  Atwood  v.  Walker,  179  Mass.  514,  519,  61  N.  E.  58;  Minor, 
Confl.  L.  493,  §  200.  We  are  aware  that  expressions  of  a  different 
tendency  may  be  found  in  some  English  cases.  But  they  do  not  cover 
the  que3:ion  before  this  court,  and  our  opinion  is  based  upon  the  ex- 
press adjudication  of  this  court,  and,  as  it  seems  to  us,  upon  the  only 
theory  by  which  actions  fairly  can  be  allowed  to  be  maintained  for 
foreign  torts.  As  the  cause  of  action  relied  upon  is  one  which  is  sup^ 
posed  to  have  arisen  in  Mexico,  under  Mexican  laws,  the  place  of  the 
death' and_the  domicile  ot  the  parties  liave  no  bearing  upon  thecase. 
The  application  of  these  considerations  now  is  to  be  shown.  The 
general  ground  on  which  the  plaintiffs  bring  their  suit  is,  as  we 
have  stated,  that  there  is  a  civil  liability  imposed  on  the  railroad,  com- 
pany arising  from  an  act  contrary  to  the  penal  law, — a  negligent  crime, 
as  it  is  called  in  the  Code.  But  the  Code  contains  specific  provisions 
for  the  case  of  homicide.  These  necessarily  override  the  merely  gen- 
eral rule  for  torts  which  also  are  crimes.  Mutual  Life  Ins.  Co.  v. 
Hill,  193  U.  S.  551,  24  Sup.  Ct.  538,  48  L.  Ed.  788.  By  article  311  the 
right  is  personal  to  the  parties  mentioned  in  art.  318,  and  is  no  part 
of  the  estate  of  the  deceased.  The  specific  cause  of  action  is  the  kill- 
ing of  the  deceased.  So  far  as  appears,  apart  from  that  and  the  follow- 
ing articles,  these  plaintiff's  would  have  no  right  of  action   for  the 


496 


PARTICULAR  SUBJECTS. 


(Part  2 


cause  alleged.  For  article  304  seems  to  presuppose  a  right  in  the  fam- 
ily, not  to  create  one,  and  we  cannot  assume  a  general  right  of  the  mem- 
bers of  a  family  to  sue  for  causing  death.  By  article  318  civil  responsi- 
bility for  a  wrongful  homicide  includes,  besides  the  expenses  of  medical 
attendance  and  burial  and  damages  to  the  property  of  the  deceased, 
the  expenses  "of  the  support  not  only  of  the  widow,  descendants  and 
ascendants  of  the  deceased,  who  were  being  supported  by  him,  he  being 
under  legal  obligations  to  do  so,  but  also  to  the  posthumous  descend- 
ants that  he  may  leave."  Then,  by  article  319,  the  obligation  to  sup- 
port shall  last  during  the  time  that  the  deceased  might  have  lived,  cal- 
culated by  a  given  life  table,  but  taking  the  state  of  his  health  before 
the  homicide  into  consideration ;  but  "the  obligation  shall  cease :  1.  At 
whatever  time  it  shall  not  be  absolutely  necessary  for  the  subsistence  of 
those  entitled  to  receive  it.  2.  When  those  beneficiaries  get  married. 
3.  When  the  minor  children  become  of  age.  4.  In  any  other  case  in 
which,  according  to  law,  the  deceased,  if  alive,  would  not  be  required 
to  continue  the  support."  It  is  unnecessary  to  set  forth  the  detailed 
provisions  as  to  support  in  other  parts  of  the  statutes.  It  is  sufficiently 
obvious-from  what  has  been  quoted  that  the  decree  contemplated  bv 
the  Mexicanlaw^s  a  decree~analogous~to  adecree  for  alimony^m  di- 
vorce  proceed^ings, — a  decree  which  contemplates~periodicn]]payiiients, 
and  whicirTs"sub]ect~to  modiji^atinn  trorn~tiiiie  LLTtifneTas  the  cjxcuai- 
stances  change.  See  also,  arts.  1376,  1377,  of  the  Code  of  Procedure, 
and  PenaTCbde,  bk.  2,  art.  363. 

The  present  action  is  a  suitat  common  ]aw,  and  the  rnu  rt  has  nr 
power  to~make  a  decree  ot  tms  kind  coritFn2pl3J£^i-by---tIi£_^Iexican 

statuites. What  the  circuit  court  did  was  to  disregard  the  principles 

of  the  Mexican  statute  altogether  and  to  follow  the  Texas  statute. 
This  clearly  was  wrong,  and  was  excepted  to  specifically.  But  we  are 
of  opinigiL-fiirtlierthat  justice  tothe  defendant  would  not  permitJ±i£. 
snbstit-ntjonjrF  ?^  IrmTfT^rnTTT'lTryw^ver^  forjhe  pprindiVajjT^^- 

ments  which  the  Mexican  statute  regmred.  The  marriage  of  bene- 
ficiaries, the  cessation  of  the  absolute  necessity  for  the  payments,  the 
arising  of  other  circumstances  in  which,  according  to  law,  the  de- 
ceased would  not  have  been  required  to  continue  the  support,  all  are 
contingencies  the  chance  of  which  cannot  be  estimated  by  any  table  of 
probabilities.  It  would  be  going  far  to  give  aj^ump  sum  in  plnre  nf 
an  annuity  for  li^eT^the—I^oUable  vTlue  of  which  could__b^  ^xf ^  ^y 
averages  based  "on  statistics.  But  to  reduce  liability  conditioned  as 
this  was  to  a  lump  sum  would  be  to  leave  the  whole  matter  to  a  mere 
guess.  We  may  add  that  by  art.  225,  concerning  alimony,  the  right 
cannot  be  renounced,  nor  can  it  be  subject  to  compromise  between  the 
parties.  There  seems  to  be  no  possibility  in  Mexico  of  capitalizing 
the  liability.  Evidently  the  Texas  courts  would  deem  the  dissimilari- 
ties between  the  local  law  and  that  of  Mexico  too  great  to  permit  an 
action  in  the  Texas  state  courts.  Mexican  Nat.  Ry.  Co.  v.  Jackson, 
89  Tex.  107,  33  S.  W.  857,  31  L.  R.  A.  276,  59  Am.  St.  Rep.  28; 


Ch.  2) 


OBLIGATIONS. 


497 


St.  Louis,  I.  M.  &  S.  R.  Co.  V.  McCormick,  71  Tex.  6G0,  9  S.  W.  540, 
1  Iv.  R.  A.  804.     The  rnc;^  i'<;  nnt  r^np  rlemaiiding  extreme  measures, 
like  those  wherea  tort  is  rnmmitted  in  an  uncivilized  country.     The 
defendant  al\vays~can  be  found  iriMexico,  on  the  other  side  of  the. 
river,  ana  it  is  to  be  presumed  that  the  courts  there  are  open  to  the_ 
plaintiffsTifthe  statute  conferred  a  ri^ht~upon  them  notwithstanding, 
their  absence  from  the  jurisdiction,  as  we  assume  that  it  did,  for  the  . 
purposes  ofHEIs-Dart  of  the  case.     See  Mulhall  v.  Fallon,  176  Alass. 
266,  57  N.  E.  386,  54L.R.  A.  934,  79  Am.  St.  Rep.  309.«*     *     *     * 


Jr  oM^ 


SOUTHERN  PAC.  CO.  v.  DUSABLON. 

(Court  of  Civil  Appeals  of  Texas,  1908.    106  S.  W.  766.) 


iAJ-*^ 


1 


Neill^  J.**  This  suit  was  brought  by  the  appellee  against  appel- 
lant to  recover  damages  for  personal  injuries  alleged  to  have  been  in- 
flicted by  the  negligence  of  the  company  on  the  26th  of  April,  1906, 
at  Lordsburg,  N.  M.  In  our  view  of  the  case  it  is  unnecessary  to 
state  the  grounds  of  negligence  averred,  nor  the  specific  injuries  sus- 
tained. The  appellant  answered  by  a  plea  of  privilege,  claiming  the 
right  to  be  sued  in  Harris  county,  Tex.  Also  by  special  demurrer, 
raising  the  question  of  jurisdiction,  which  being  overruled,  it  filed 
a  special  plea  to  the  jurisdiction  of  the  court,  predicating  such  plea 
upon  the  statute  set  out  in  our  conclusions  of  law,  and  upon  the  fact 
that  appellee  was  a  resident  citizen  of  New  Mexico  at  the  time  of  -^*-»>t'''**-*'^ 
his  alleged  injuries  and  when  this  suit  was  brought.     This  plea  be-         *  ' 

ing  overruled,  appellant  pleaded  certain  defenses  in  bar,  which,  in 
view  of  the  disposition  we  shall  make  of  the  case,  are  not  necessary 
to  further  mention.  The  trial  of  the  case  resulted  in  a  verdict  and 
judgment  for  the  appellee.     *     *     * 

It  is  a  general  rule  that  for  the  purpose  of  redress  it  is  immaterial 
where  a  wrong  was  committed ;  in  other  words,  a  wrong  being  per- 
sonal, redress  may  be  sought  for  it  whenever  the  wrongdoer  may  be 
found.  To  this  there  are  a  few  exceptions,  in  which  actions  are  said 
to  be  local,  and  must  therefore  be  brought  within  the  country  where 
they  arose.  As  applied  to  torts,  these  exceptions  may  be  said  to  con- 
sist of:  (1)  Those  where  the  lex  loci  delicti  is  in  direct  contraven- 
tion of  the  law  or  policy  of  the  forum;  (2)  where  the  remedy  pre- 
scribed for  the  tort  by  the  lex  loci  delicti  is  penal  in  its  character; 


8  3  Fuller,  C.  J.,  with  whom  concurred  Harlan  and  Peckhani,  J  J.,  dissent- 
ed. In  his  dissenting  opinion  the  learned  Chief  Justice  said :  "It  seems  to  me 
that  the  method  of  arriving  at  and  distributing  the  damages  pertains  to  the 
procedure  or  remedy — that  is  to  say,  to  the  course  of  the  court  after  parties 
are  brought  in,  and  the  means  of  redressing  the  wrong — and  I  think  the  gen- 
eral rule  that  procedure  and  remedy  are  regulated  by  the  law  of  the  forum  is 
applicable."  Page  132.  See  4  Col.  Law  Rev.  503. 
84A  part  of  the  opinion  has  been  omitted. 
LoB.CoNF.L.— 32 


tM. 


.^>tA^^       '-^ 


498  PARTICULAR  SUBJECTS.  (Part  2 

and  (3)  statutory  torts,  where  the  statute,  in  creating  the  liability,  at 
the  same  time,  creates  a  mode  of  redress  peculiar  to  that  state,  by 
which  alone  the  wrong  is  to  be  remedied.  To  these  exceptions,  how- 
ever, there  are  certain  limitations  and  qualifications  not  necessary  to 
mention  here.  It  is  obvious  that  the  second  exception  has  no  applica- 
tion to  this  case.  But  it  was  earnestly  contended  by  counsel  for  appel- 
lant in  brief  and  oral  argument  that  the  first  has;  and  among  other 
cases  they  cite  Mexican  Nat.  Ry.  Co.  v.  Jackson,  89  Tex.  113,  33  S. 
W.  857,  31  L.  R.  A.  276,  59  Am.  St.  Rep.  38,  in  support  of  the  con- 
tention.    *     *     * 

The  Jackson  Case  was  decided  upon  the  ground  that  the  remedy 
given  by  the  law  of  Mexico  for  such  an  injury  is  so  essentially  differ- 
ent from  that  given  by  our  law  that  it  cannot  be  enforced  by  the 
courts  of  Texas.  Something  is  said,  arguendo,  in  the  opinion  as  to 
public  policy  of  Mexico,  a  matter  about  which  the  courts  of  this  state 
are  not  concerned,  and  is  never  considered  in  determining  the  public 
policy  of  the  forum.  It  is  the  public  policy  of  its  own  country  that  a 
court  must  look  to  and  be  governed  by  in  deciding  whether  it  will 
entertain  jurisdiction  of  a  cause  of  action  arising  elsewhere,  and  not 
to  the  policy  of  a  foreign  country,  about  which  they  know  and  care 
nothing.  In  view  of  what  has  always  been  the  pronunciation  of  our 
courts  on  cases  of  this  character,  we  do  not  think  it  was  the  intention 
of  the  Supreme  Court  to  hold  that  jurisdiction  should  be  denied  be- 
cause they  would  be  "charge  upon  our  people"  in  making  settlement 
of  rights  originating  outside  the  state,  under  the  laws  of  a  different 
government.  See  Mexican  Cent.  Ry.  Co.  v.  Mitten,  13  Tex.  Civ. 
App.  653,  36  S.  W.  282.  But,  however  this  may  be,  the  territory  of 
New  Mexico  does  not  occupy  the  attitude  towards  Texas  of  strictly 
a  foreign  country.  Among  the  privileges  guaranteed  by  article  4, 
§  3,  of  the  Constitution  of  the  United  States  to  the  citizens  of  each 
state,  is  the  right  to  institute  and  maintain  actions  of  every  kind  that  is 
accorded  its  own  citizens.  Corfield  v.  Coryell,  4  Wash.  C.  C.  380, 
Fed.  Cas.  No.  3,230.  Under  the  third  section  of  article  4  of  the  Con- 
stitution it  has  been  held  that  a  "citizen  of  a  sister  state  may  sue  a 
defendant  resident  of  his  home  state  in  any  state  where  he  can  get 
service  on  him,  even  though  the  cause  of  action  arose  in  his  home 
state,  provided  it  be  transitory."  Eingartner  v.  Illinois  Steel  Co.,  94 
Wis.  70,  68  N.  W.  664,  34  L.  R.  A.  503,  59  Am.  St.  Rep.  859 ;  Cofrode 
V.  Gartner,  79  Mich.  332,  44  N.  W.  623,  7  L.  R.  A.  511.  While  it  may 
be  that  this  privilege  is  not  extended  to  citizens  of  territories,  and 
may  be  claimed  only  by  citizens  of  sister  states,  yet  a  territory  like 
New  Mexico,  waiting  to  be  panoplied  with  statehood,  is  a  child  of  the 
federal  government  to  whom  comity,  at  least,  should,  in  its  infancy, 
be  extended  by  one  of  the  United  States.  We  therefore  conclude 
that  this  case  does  not  fall  within  the  first  exception  stated  to  the 
general  rule  that,  for  the  purpose  of  redress,  it  is  immaterial  where 
the  wrong  is  committed. 


Ch.    2)  OBLIGATIONS.  499 

Does  it  fall  within  the  third  exception?  This  question  depends  upon 
(1)  whether  plaintiff's  action  is  founded  upon  a  statutory  tort,  and 
(2),  if  it  is,  whether  the  statute,  in  creating  the  liability,  at  the  same 
time  creates  a  mode  of  redress  peculiar  to  the  territory  of  New  Mexico. 
The  act  of  the  Legislature  (Laws  1903,  p.  51,  c.  33)  upon  which  the 
appellant  bases  its  contention  that  this  action  is  for  purely  a  statutory 
tort  is  as  follows : 

"Whereas  it  has  become  customary  for  persons  claiming  damages 
for  personal  injuries  received  in  this  territory  to  institute  and  main- 
tain suits  for  the  recovery  thereof  in  other  states  and  territories,  to 
the  increased  cost  and  annoyance  and  manifest  injury  and  oppression 
of  the  business  interests  of  this  territory,  and  in  derogation  of  the 
dignity  of  the  courts  thereof ;  therefore  be  it  enacted  by  the  Legislative 
Assembly  of  the  territory  of  New  Mexico : 

"Section  1,  Hereafter  there  shall  be  no  civil  liability  under  either 
the  common  law  or  any  statute  of  this  territory  on  the  part  of  any 
person  or  corporation  for  any  personal  injuries  inflicted,  or  death 
caused  by  such  person  or  corporation  in  this  territory,  unless  the  person 
claiming  damages  therefor,  shall,  within  ninety  days  after  such  in- 
jury shall  have  been  inflicted,  make  and  serve  upon  the  person  or 
corporation  against  whom  the  same  is  claimed  and  at  least  thirty 
days  before  commencing  suit  to  recover  judgment  therefor,  an  afti- 
davit  which  shall  be  made  before  some  officer  within  this  territory 
who  is  authorized  to  administer  oaths,  in  which  the  affiant  shall  state 
his  name  and  address,  the  name  of  the  person  receiving  such  injuries, 
in  so  far  as  the  same  may  be  known  to  afffant,  the  way  or  manner  in 
which  said  injuries  were  caused  in  so  far  as  the  affiant  has  any  knowl- 
edge thereof,  and  the  names  and  addresses  of  all  witnesses  to  the  hap- 
pening of  the  facts  or  any  part  thereof  causing  such  injuries  as  may 
at  such  times  be  known  to  affiant,  and  unless  the  person  so  claiming 
such  damages  shall  also  commence  an  action  to  recover  the  same  within 
one  year  after  such  injuries  occur  in  the  district  court  of  this  terri- 
tory in  and  for  the  county  in  which  such  injuries  occur,  or  in  and 
for  the  county  of  this  territory  where  the  claimant  or  person  against 
whom  such  claim  is  asserted  resides,  or  in  event  such  claim  is  asserted 
against  a  corporation,  in  the  county  in  this  territory  where  such  cor- 
poration has  its  principal  place  of  business ;  and  said  suit  after  hav- 
ing been  commenced  shall  not  be  dismissed  by  plaintiff  unless  by 
written  consent  of  defendant  filed  in  the  case  or  for  good  cause  shown 
to  the  court ;  it  being  hereby  expressly  provided  and  understood  that 
such  right  of  action  is  given  only  on  the  understanding  that  the  fore- 
going conditions  precedent  are  made  a  part  of  the  law  under  which 
right  to  recover  can  exist  for  such  injuries  except  as  herein  otherwise 
provided." 

"Sec.  3.  It  shall  be  unlawful  for  any  person  to  institute,  carry  on  or 
maintain  any  suit  for  the  recovery  of  any.  such  damages  in  any  other 
state  or  territory." 


500  PARTICULAR  SUBJECTS.  (Part  2 

It  clearly  appears  from  this  act  that  the  Legislature  intended  to  make 
any  right  of  action  against  any  person  or  corporation  for  personal 
injuries  or  death  inflicted  in  New  Mexico  depend  upon  the  person 
claiming  damages  bringing  and  prosecuting  his  suit  therefor  in  a  dis- 
trict court  of  the  territory,  after  performing  certain  acts  made  con- 
ditions precedent  to  his  cause  of  action.  In  other  words,  its  obvious 
purpose  was  to  relieve  the  perpetrator  of  the  wrong  from  any  civil 
liability  therefor,  unless  the  party  damaged,  after  complying  with  cer- 
tain conditions  prescribed,  instituted  his  suit  within  one  year  after  the 
injuries  occurred  in  the  district  court  of  the  territory  where  they  were 
inflicted,  or  in  the  county  where  both  parties  reside,  or,  if  against 
a  corporation,  in  the  county  of  the  territory  where  such  corporation 
has  its  principal  place  of  business.  It  will,  however,  be  observed  that 
the  statute  does  not  create  or  originate  the  cause  of  action,  but  seems 
to  recognize  the  fact  that  civil  liability  theretofore  existed  at  common 
law,  as  well  as  by  statute,  for  personal  injuries  inflicted  or  death  caused 
by  persons  or  corporations  in  New  Mexico.  This  differentiates  this 
case  from  Ross  v,  Kansas  City  S.  Ry.  Co.,  34  Tex.  Civ.  App.  586,  79 
S.  W.  626,  and  others  which  hold  that,  where  a  cause  of  action  is 
created  by  and  has  its  origin  in  a  statute  which  imposes  conditions 
or  limitations  upon  the  right  as  prerequisites  to  its  exercise,  this  is  a 
right  of  action  existing  at  common  law,  which  has  not,  as  in  the  case 
of  Coyne  v.  Southern  Pacific  Co.  (C.  C.)  155  Fed.  683,  been  wholly 
superseded  by  the  statute,  upon  which  conditions  are  sought  to  be 
imposed  by  statute  limiting  its  enforcement.  As  was  said  by  this  court 
in  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Sowers  (Tex.  Civ.  App.)  99  S.  W. 
190,  a  case  where  the  same  statute  was  considered,  and  precisely  like 
this  one,  except  the  plaintiff  was  a  citizen  of  the  territory  of  Arizona: 
"The  section  of  the  law  under  consideration  *  *  *  attempts  not 
only  to  prohibit  its  citizens,  but  all  parties,  who  are  so  unfortunate 
as  to  be  injured  within  its  territorial  limits,  from  exercising  the  right, 
accorded  in  England,  the  states  of  the  American  Union,  and  other 
civilized  countries,  of  instituting  such  actions,  wherever  the  guilty 
party  may  have  his  or  its  domicile."  The  judgment  in  favor  of  plain- 
tiff in  that  case  was  affirmed,  and  an  application  by  the  defendant  for 
a  writ  of  error  was  denied  by  the  Supreme  Court.  This  is,  in  so  far 
as  it  can  be  decided  by  the  courts  of  state,  a  judicial  determination  that 
this  action  is  not  a  statutory  one,  in  the  sense  that  it  can  only  be  prose- 
cuted and  maintained  in  the  state  where  the  injury  was  inflicted,  un- 
less the  injured  party  be  a  citizen  of  that  state.  But,  inasmuch  as 
the  plaintiff -in  this  case  was  at  the  time  his  cause  of  action  accrued, 
and  when  this  suit  was  brought,  a  resident  citizen  of  the  territory  of 
New  Mexico,  the  further  question  is  presented:  Can  this  action,  in 
view  of  the  statute  under  consideration,  be  maintained  by  him  in  any 
jurisdiction  except  that  territory?  It  cannot  be  said  that  a  citizen  is 
not  to  be  governed  and  bound  by  the  laws  of  his  own  country;  nor 
can  he,  in  disregard  of  such  laws,  go  into  the  courts  of  another  coun- 


pc 


Ch.    2)  OBLIGATIONS.  501 

try  and  ask  them  as  a  matter  of  comity  to  redress  wrongs  which  the 
laws  of  his  domicile  require  him  to  seek  redress  in  the  courts  of  his 
own  country.  The  very  principle  upon  which  comity  between  foreign 
or  sister  states  is  based  repels  the  idea  that  he  has  even  the  shadow 
of  a  claim  to  any  such  right.  As  we  said  in  the  Sowers  Case :  "The 
right  of  injured  parties  to  recover  damages  from  the  negligent  in- 
flictor  of  the  injuries  is  recognized  in  New  Mexico,  although  the 
recognition  carries  with  it  burdensome  and  vexatious  conditions,  of 
which,  however,  if  its  citizenship  is  willing  to  endure  them,  no  one  is 
in  a  position  to  complain."  The  honor  one  enjoys  in  being  a  resident 
of  a  territory  whose  Legislature  has  such  an  exalted  idea  of  the  "dig- 
nity" of  its  courts,  and  tender  consideration  for  its  "business  inter- 
ests," manifested  by  the  statute  in  question,  must  be  taken  cum  onere. 
We  therefore  conclude  that  the  district  court  was  without  jurisdic- 
tion of  this  case,  and  that  it  erred  in  not  sustaining  defendant's  ex- 
ception and  plea  to  its  jurisdiction. 

If  we  are  correct  in  this  conclusion,  the  other  assignments  of  error 
should  not  be  considered.  If,  however,  the  Supreme  Court  should 
differ  from  us  upon  the  jurisdictional  question,  we  will  then  cheer- 
fully perform  the  duty  of  considering  all  other  questions  raised  by  the 
assignments. 

For  reason  of  the  errors  indicated,  the  judgment  of  the  district 
court  is  reversed, -and  the  suit  dismissed,  without  prejudice  of  plain- 
tiff's right,  if  any  he  has,  to  institute  and  prosecute  his  action  in  any 
jurisdiction  outside  the  state  of  Texas. 

Reversed  and  dismissed."  1^'^fr*^ 

85  In  Illinois  it  is  provided  by  statute  (Laws  of  1903,  p.  217)  that  no  action       "^         .  S^*     • 
shall  be  brought  or  prosecuted  to  recover  damages  for  death  occurring  outside         1^  't  ^ 

the  state.     The  statute  prohibits  the  bringing  of  an  action  in  Illinois  only  f^^^At^"^       aa)'} 
where  the  act  by  which  the  death  was  caused  occurred  in  another  state.  Qjfi^  tp^ 

Crane  v.  Chicago  &  W.  I.  R.  Co.,  233  111.  259,  84  N.  E.  222  (1908).    And  in  Ohio  G»^  »  6^'^^ 

the  Supreme  Court  of  the  state  reached  the  following  conclusion:     "From  a  A>** 

consideration  of  the  statutes  hereinbefore  referred  to  and  the  former  decisions  0/J^  '  O-*- 

of  this  court,  we  think  it  must  now  be  held  to  be  the  recognized  policy  and  j   gj  %  ^^^     ^ 

established  law  of  this  state  that  an  action  for  wrongful  death  occurring  in    Ajr^^^  </*? 

another  state  will  not  be  enforced  in  the  courts  of  this  state,  except  where  the    "^  jpj  l/J' 

person  killed  was,  at  the  time  of  his  death,  a  citizen  of  Ohio."    Baltimore  &  O.  ..^^^ 


i^S^^^^^ 


R.  Co.  V.  Chambers,  73  Ohio  St.  16,  76  N.  E.  91,  11  L.  R.  A.  (N.  S.)  1012  (1905) ; 
affirmed  Chambers  v.  Baltimore  &  O.  R.  Co-  207  n    s    -142,  28  Snp.  C±   34,  52 

L.  Ed.  143  {\Wr\. ^  ^^ 

^M»"    An  action  of  trespass  to  realty  is  local,  and  cannot  be  maintained  in  anv  ,-  C     -^ 

Vl^omer  jTirisdTction.     D6ulson  v.  Matthews,  4  T.  R.  503   (1792);    British  Soutii      n  ,|'>'^ 
f  f         Africa  Co.  v.  Companhia  de  Mocambique,  App.  Cas.  602  (1S93) ;    EUenwood  v.    a  . 
I  /  Marietta  Chair  Co.,  158  U.  S.  10-3,  15  Sup.  Ct.  771,  39  L.  Ed.  933  (1895).     Con-      \  . 

•  '  tra:    Little  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  65  Minn.  48,  67  N.  W.  846,  33  c     <//'• 

L.  R.  A.  423,  60  Am.  St.  Rep.  421  (1896).    See,  in  general,  22  Am.  St.  Rep.  22-  ,    U  -^^ 

27.  ^   %> 

With  respect  to  the  infringement  of  foreign  patents,  see  19  Harv.  L.  Rev. 
295 ;  with  respect  to  the  infringement  of  foreign  trade-marks.  21  Harv.  L. 
Rev.  361 ;  and  as  to  foreign  patents,  copyrights,  and  ti-ade-marks  in  general, 
V.  Bar,  Priv.  Int.  Law,  737-791:  Meili,  Int.  Civ.  &  Com.  Law,  4.50-453; 
Weiss,  Traite  de  droit  international  prive,  vol.  4,  pp.  451-501. 

Continental  Law. — On  principle,  the  lex  loci  governs.     France,  Cass.  May 


V 


;^- 


PARTICULAR  SUBJECTS. 


THE  SCOTLAND. 


(Part  2 


V^  ^ 


(Supreme  Court  of  the  United  States,  1881.     105  U.  S.  24,  26  L.  Ed.  1001.) 

Appeals  from  the  circuit  court  of  the  United  States  for  the  Eastern 
district  of  New  York. 

Bradley,  J.^^    The  steamship  "Scotland,"  belonging  to  the  National 
Steam   Navigation  Company,   a   corporation"  oi 
from 


Great  Britain,  sailed 
few  _York  for  Liverpool,  on^the  1st  of  December,  186^,  with 
freight  and  passengers ;  and(af ter  7eaHiing~tTTe"Tirgh~sea^pposite  Fire 
Island  light,  ran  into  the  American  ship  "Kate  Dyer,"  bound  from 
Callao,  in  the  republic  of  Peru,  to  New  York,  laden  with'  a  cargo  of 
guano.  The  "Kate^Dyer"  immediately  sank,~and  ship  and  cargo  were 
totally  lost.  The  Steamship  suffered  so  severely  from  the  collision 
that  she  put  back,  but  was  unable  to  get  further  than  the  middle  ground 
outside  and  south  of  Sandy  Hook,  where  she  also  sank  and  became 
a  total  loss,  with  the  exception  of  some  stnppmg~of  ship's  material, 
consisting  of  anchors,  chains,  rigging,  and  cabin  furniture  got  from 
her  by  the  Coast  Wrecking  Company  before  she  went  down.  Libels 
in  persoaagi  werf^  filed  in  the  district  court  for  the  Eastern  district 
of  New  York,  against  the  steam  navigation  company  by  the  owners 
of  the  "Kate  Dyer."  the  Peruvian  government,  owner  of  her  cargo, 
and  by  a  passenger  and  some  of  the  crew  who  lost  certain  effects  by 
the  sinking  of  the  ship.  Personal  service  of  process  not  being  ob- 
tainable,  the  marshal  attached  another  vesseLbelpnging^to  the  steam- 


ship company^  lying  in  the  port  of  New  York,  which  was  duly  claimed 
and  reTeased^onTslipiilati^on,  and  the  steamship  company  appeared  and_ 
responded^to  the  libej^  The  answer  admitted  the  collision,  but  denied 
that  the  "Scotland"  was  in  fault,  and  further  alleged  as  follows :  "Re- 
spondents further  answering  say,  that  said  steamer  'Scotland'  was 
by  said  collision  sunk  and  destroyed,  and  that  there  is  no  liability  in 
personam  against  these  respondents  for  said  loss  of  the  'Kate  Dyer.'  " 
Proofs  being  taken,  the  district  court  rendered  a  decree  in  favor  of 
the  libellants,  which,  on  appeal  to  the  circuit  court,  was  substantially 
affirmed.  The  owners  of  the  "Kate  Dyer"  were  awarded  $56,000. 
with  interest;  the  owners  of  the  cargo,  $57,375,  with  interest;  and 
the  passengers  and  crew,  upwards  of  $11,000,  with  interest. 

16,  1888  (S.  1891,  1,  509) ;  App.  Parig,  June  23,  1899  (28  Clunet,  128).  Germany, . 
R.  G.  March  12,  1900  (Juristiche  Wochenschrift,  1906,  p.  297).  So  as  to 
liability  of  principal  for  thjs  torts  of  his  agent,  19  R.  G.  382  (Sept.  23,  1887) : 
K.  G.  .July  1,  1896  (6  Niemeyer,  514).  It  will  not  be  applied  where  it  would 
conflict  with  the  rules  concerning  public  order.  France,  Cass.  May  29,  1894 
(S.  1894,  1,  481),  and  note  by  Gh.  Lyon-Caen.  Germany,  29  R.  G.  90  (June  25 
and  July  9,  1882).  And  according  to  article  12,  Law  Intr.,  no  greater  claim 
for  a  foreign  wrongful  act  can  be  asserted  in  a  German  court  against  a  Ger- 
man than  is  authorized  by  German  law. 

See  P.  Fiore,  De  la  loi  qui  d'apres  les  principes  du  droit  international  doit 
rf'gir  les  engagements  qui  se  forment  sans  convention.  27  Clunet,  449^60, 
717-734. 

8flA  part  of  the  opinion  has  been  omitted. 


Ch.    2)  OBLIGATIONS.  Aj  503 

On  the  trial  in  the  circuit  court,  the  respondents,  besides  contesting 
the  question  of  fault  and  general  liability,  again  insisted  upon  tlie 
benefit  of  the  limited  liability  law^  and  proposed  for  adoption  by  the 
court  a  certain  finding  of  fact  and  conclusion  of  law  looking  to  that 
end.  The  finding  of  fact  was  substantially  adopted  by  the  court  as 
follows :  "The  steamer  was,  by  reason  of  the  said  collision  and  in  con- 
sequence thereof  so  injured  that,  although  at  once  put  about,  she 
could  only  reach  the  'outer  middle,'  so  called,  on  the  west  side  of  the 
channel  south  of  Sandy  Hook,  where  she  sank  and  became  a  total 
loss,  except  that  a  large  amount  of  anchors,  chains,  rigging,  and  cabin 
furniture,  of  the  value  of  several  thousand  dollars,  was  saved  from  her 
and  delivered  to  the  agent  of  the  respondents.  She  earned  no  freight, 
the  voyage  being  broken  up.  The  passage-money~paid  in  advance 
by  the  passengers  was  $1,703.65 ;  of  this  $225  was  refunded  to  such 
of  them  as  could  not  wait  to  be  transported  by  the  respondents  in 
another  vessel  of  their  line ;  the  remaining  passengers  were  forwarded 
by  the  'Queen,'  and  the  expense  charged  to  the  'Scotland.'  Irrespec- 
tive of  the  carriage  of  the  passengers  by  the  'Queen,'  the  respondents 
paid  return  money  as  above,  $225,  and  the  expenses  of  bringing  the 
passengers  to  New  York,  and  taking  care  of  them  before  they  were 
reshipped,  $566.83,  in  all,  $791.83 ;  the  balance  of  the  passage-money, 
$911.82,  was  credited  to  the  'Queen,'  and  charged  to  the  'Scotland.' " 

The  conclusion  of  law  proposed  and  insisted  on  bythe  respon_den.ts 
as  legitimately  arising  upon  this  fact  was  as  follows,  to  wit :  "The 
liability  of  the  respondents,  as  owners  of  the  said  steamship  'Scotr 
ion£iiJ_rjjj_r|pt  p^<-pnrl  hpynnrl  t\]P  yaluc  of  their  intcrcst  in  the  vessel 
andjier  peiidiDgLireighL^_thejdme_Qf  lhe_^^  the  vessel 

having  been  lost  by  the  collision,  and  no  freight  or  pasTage-monev  , 

earned,  the~respondents~are]Thereby_dischafged  from  any  JiaEilit^^onl 
accolmt  tHereof?^  j 

The   circuit  court,  as  before  stated,  refused  any  relief  grounded     TtV^ ' 
on  the  fimitedliability  law,  but  made  a  decree'  agauist  the  respond- 
ents for~the  total  amount  of  damages  sustained  by  the  various  parties 
in  interest.    To  this  conclusion  the  respondents  excepted. 

Both  parties  appealed  from  the  decree,  and  the  case  is  now  before 
us  for  review.  The  appeal  of  the  libellants  was  based  on  what  they 
supposed  to  be  an  erroneous  conclusion  of  the  court  in  reference  to 
the  allowance  of  interest,  and  the  estimation  of  the  value  of  the  cargo.  r:  .     -f 

The  principal  question  raised  and  argued  on  this  appeal  is,  whether  '^^^C^u^mXc*^ 
the  steamship  company  is  entitled  to  the  benefit  of  a  limited  respon- 
sibility equal  to  the  value  of  the  steamship  and  freight  after  the  col- 
lision occurred, — a  liability  which,  in  this  case,  as  the  vessel  and  freight 
were  a  total  loss,  would  only  amount  to  the  value  of  the  articles  saved 
by  the  wrecking  company.  It  is  contended  by  the  company  that  it  is 
entitled  to  the  benefit  of  such  limitation,  either  under  the  general 
maritime  law  or  under  the  act  of  congress  of  March  3.  1851,  c.  43. 
On  the  other  side,  it  is  contended  that  the  general  maritime  law  on  this 


.'  ■?, 


QjM 


504  PARTICULAR  SUBJECTS.  (Part  2 

subject  (if  there  be  any)  is  not  in  force  in  this  country,  and  that  the 
benefit  of  the  act  of  congress  cannot  be  claimed  by  foreign  vessels. 
It  is  further  contended  by  the  libellants  that  the  steamship  company, 
even  if  it  might  have  had  the  benefit  of  the  rule,  failed  to  take  the 
proper  steps  for  obtaining  it, — first,  in  not  filing  a  petition  according 
to  the  rules  of  this  court;  and,  secondly,  in  not  surrendering  the  prop- 
erty recovered  from  the  wreck,  or  its  proceeds. 

In  the  case  of  Norwich  &  N.  Y.  Transp.  Co.  v.  Wright.  13_Wall. 
104,  20  L.  j^d.  5857  we  had  occasion  to  state  that  the  general  maritime 
J,     ,^*jA^^^^        law  of  Europe  only  charges  innocent  owners  to  the_extent  of_ their 
LM^^  interesTTn  the  ship  for  the  acts  of  the  master  and  crew,  and  that  if 

the^sbip^is  lost  their  liability  is  at  an  end.  This  rule  is  laid  down  m 
several  places  in  the  ancienPcode  called  the  Consolato  del  Mare,  and 
in  many  other  authorities  which  are  quoted  and  commented  upon  by 
Judge  Ware  in  the  case  of  The  Rebecca,  1  Ware,  187,  Fed.  Cas.  No. 
11,619 ;  and  it  is  specifically  formulated  in  various  national  ordinances 
and  codes,  amongst  others,  in  the  Marine  Ordinance  of  Louis  XIV., 
adopted  in  1681.  Emerigon,  in  his  treatise  of  Contracts  "a  la  Grosse," 
says :  "The  owners  of  the  ship  are  bound  in  solidum  by  everything 
which  the  captain  does  in  the  course  of  the  voyage  for  the  promo- 
tion of  the  voyage.  *  *  *  But  this  action  in  solidum  does  not 
exist  against  the  owners  farther  than  according  to  the  interest  which 
they  have  in  the  body  of  the  ship;  hence,  if  the  ship  perish,  or  if  they 
abandon  their  interest,  they  are  no  longer  liable  for  anything.  It 
is  thus  that  the  maritime  laws  of  the  Middle  Age  have  directed;  such 
is  the  law  which  is  observed  in  the  North;  and  such  is  the  regulation 
of  our  own  ordinance :"  and  he  refers  to  the  Consolato  and  other 
authorities.  The  text  of  the  French  ordinance,  which  is  regarded 
as  merely  formulating  the  old  customary  law,  is  as  follows :  "The 
owners  of  ships  are  responsible  for  the  acts  of  the  master,  but  they 
become  discharged  therefrom  by  abandoning  the  ship  and  freight." 
A  .     But  whilst  this  is  the  rule  of  the  general  maritime  law  of  Europe, 

f%  Ajt''^'^  l_,^  it  was  not  received^as  law  in  England  nor  in  this  country  until  made 
\^^^^ ,^h\J>^  so  by  statute.  The  En"g!Ish  statutes,  irTdeed,  have  not  yet  adopted,  to 
.  ^Pjr*  ffrjLwv  ''^^  ^^^^^  extent,  the  maritime  law  on  this  subject.  Thev_make  the  own- 
|Vjt>*^  ^rs  res£onsible  to_the  valu^_of  ship  and  freight  at  the^ime  ol  the  in- 

y^   '^^liLV"'  jiiry    (that  is,  immediately  before~Tlie  injury),  although  the  ship  J)e 

destroyed,  or  injured  by  the  same  act,  or  afterwards  in  the  same  voy- 
whilst  our  law  adopts  the  maritime  rule  of  graduating  the  lia- 
bility by  the  value  of  the  ship  after  the  injury,  as  she  comes  back  into 
port,  and  the  freight  actually  earned ;  and  enables  the  owners  to  avoid 
all  responsibility  by  giving  up  ship  and  freight,  if  still  in  existence, 
^^^-^^  •i'  *'^  *J^ /"  whatever  condition  the  ship  may  be;  and,  without  such  surrender, 
1<-*V  ^W*  X^  subjects  them  only  to  a  responsibility  equivalent  to  the  value  of  the 
VTtJf^  ship  and  freight  as  rescued  from  the  disaster. 

f)r^^  vA^  ^^'  whilst  the  rule  adopted  by  congress  is  the  same  as  the  rule 

A^^  C)f  the  general  maritime  law,  its  efficacy  as  a  rule  depends  upon  the 


Ch.  2) 


OBLIGATIONS. 


605 


'If 


statute,  and  not  upon  any  inherent  force  of  the  maritime  law.  As 
explained  in  The  Lottawanna,  21  Wall.  558,  22  L.  Ed.  654,  the  mari- 
time law  is  only  so  far  operative  as  law  in  any  country  as  it  is  adopted 
by  the  laws  and  usages  of  that  country;  and  this  particular  rule  of 
the  maritime  law  had  never  been  adopted  in  this  country  until  it  was 
enacted  by  statute.  Therefore,  whilst  it  is  now  a  part  of  our  mari- 
time law,  it  is,  nevertheless,  statute  law,  and  must  be  interpreted  and 
administered  as  such.     Then,  does  it  govern  the  present  case? 

In  administering-  justice  between  Tjar^^'^'^  ^'^  ^'^  p'^sential  fn^JNrinxvJjy 

whaT  law,    or    code,   Or_System    oiJawa,-  fhelr   mnt-inl    ricrTifg    pfp    tn    he 

detei'inined. — When  tEey  arise  in  a^articulax_country  or  .state^they  are 
geriefally  to  be  determined  bythe  laws  of  tha±_state.  Those  laws  per-^ 
vade  "all  transactions  which  take  place  where  they  prevail,  and  _giye 
them  their  color  and.jegal  effect  HencCj  if  a  collision  should  occur_ 
in  British  waters,  at  least  between  British  ships,  and  the  injur^d_^ajty 
should^ek  rgliefjn  our  courts,  we  would  administer  justice  accordj 
ing  toTHe^British  law,  so  far  as  the  rights  and_liabilities  of  the_partie§. 
were  cohcernedjjrovided  it  were  shown  whatthat  law  was.  If  not 
shown,  we  woulj[appl;^_^ur_ottai--law  to  the-xase.  In  the  French  o 
Dutch  tribunals Tliey  would  do  the  same.  But,  if  a  collision  occurs 
on  thehigh^seas,  where  the  jaw  of  no  particulafstate  has  exclusive 
force,  but  all  are  equal,  any  forum  called  upon  to  settle  the  rights  of 
the  parties  would  prima  tacie  determme  them  by  its  own  la^y  pi^  pre- 
sumptively expressing  the  rules  of  justice;  but  if  the  contesting  yes^ 
sels  belongedto  the  same  foreign  nation,  the  mi  irj^  would  nssnme  that 
they  were  subject  to  the  law  of  their  nation  carried  under  their  com- 
mon  flag,  and  would  determine  the  controversy  accordingly.  If  they 
belonged  to  different  nations,  having  different  laws,  since  it  would  b"e 
unjust  to  apply  the  laws  of  Neither  Jo  the  exclusion  of  the  other,  tfie_ 
law  of'the  lorum,  that  is,  the  rnaritime  law  as  received  and  practised 
therein,  would  properly  furnish  the  rule  of  decision.  In  all  other  cases, 
each  nation  will  also  administer  justice  according  to  its  own  laws. 
And  it  will  do  this  without  respect  of  persons,  to  the  stranger  as  well 
as  to  the  citizen.  If  it  be  the  legislative  will  that  any  particular  privi- 
lege  should  be  enjoyed  by  its  own  citizens  alone,  express  provision 
will  bemade  to  that  effect^  Some  laws,  it  is  true,  are  necessarily  ^e- 
cial  In  their  application__to  domestic  ships^  such  ng_  flmc^f  relating  ta 
the  forms  of  ownership,  charter-party,  and  nationality;  others  fol- 
low the  vesseTwherever  _sh£^pes~aiItIi£ja35L^_tjieflag,  such  as  those' 
which  regulate  the  mutual  relations  of  master  and  crew,  and  the  po\i^r 
of  the  master~to^in(r  the  ^BTp^or  her  owners.  But  the_great  mass  of 
the  laws  are,  oF  are  intended  to  be^^  expressive  of  the  rules  oT Tustice" 
and  right  applicable  alike  to  all. 

The  act  ofj-ongref^S  rrpafing  a   HmiteH  rp<;j^rtn<;ihi1ity  of  ship-^OMOier* 

in  certain  cases,  first  passed  March  3,  1851,  and  feproducedin  sec- 
tions 4282-4289  of  the  Revised  Statutes,  is^;eneral  in  its  terms,  ex::. 
tending  to  all  owners  of  vessels  without  distinction  or  discrimination. 


^^4 

^^•^^•^1 


fff^%^c*U^ 


506  PARTICULAR  SUBJECTS.  (Part  2 

It  declares  that  "the  liability  of  the  owner  of  any  vessel  for  any  em- 
bezzlement, loss,  or  destruction,  by  any  person,  of  any  property,  goods, 
or  merchandise,  shipped  or  put  on  board  of  such  vessel,  or  for  any 
loss,  damage,  or  injury  by  collision,  or. for  any  act,  matter,  or  thing, 
loss,  damage,  or  forfeiture,  done,  occasioned,  or  incurred,  without  the 
privity  or  knowledge  of  such  owner  or  owners,  shall  in  no  case  exceed 
the  amount  or  value  of  the  interest  of  such  owner  in  such  vessel,  and 
her  freight  then  pending."  This  statute  declares  the  rule  which  the 
law-making  power  of  this  country  regards  as  most  just  to  be  applied  in 
maritime  cases.  The  2:T"^Lmi.n'^''^C  ^""Hfle  by  land  is  governed_t)y 
substantially  the  same  principle;  being  in  the  hands  of  corporate  as_- 
qnriatinns^  wTin'^p^ernbers_are  not  personally_liable  for  acts  of  the  em^ 
ployes,J>ut  risk  only  t1-ie_arnrninf-  of  _  their  capital  stock Jn_ the  corpora- 
tion.  The  doctrine  of  respondeat  superior,  it  is  true,  applies  to  the 
corporations  themselves ;  but  that  does  not  interfere  with  the  per- 
sonal immunity  of  the  shareholders.  Whenever  the  public  interest 
requires  the  employment  of  a  great  aggregation  of  capital,  exposed  to 
immense  risk,  some  limitation  of  responsibility  is  necessary  in  order 
that  men  may  be  induced  to  contribute  to  the  enterprise.  As  Grotius 
says,  in  reference  to  this  very  matter  of  ship-owners :  "Men  would  be 
deterred  from  owning  and  operating  ships,  if  they  were  subject  to 
the  fear  of  an  indefinite  liability  for  the  acts  of  the  master."  De  Jure 
B.  lib.  2,  c.  11,  §  13. 

But  it  is  enough  to  say,  that  the  rule  of  limited  responsibility  is 
now  our  maritime  rule.  Ic  is  the  rule  by  which,  through  the  act  of 
congress,  we  have  announced  that  we  propose  to  administer  justice 
in  maritime  cases.  We  see  no  reason,  ^n  the  absence  of  any  diflferent 
law  governing  the  case,  why  it  should  not  be  applied  to  foreign  ships 
as  well  as  to  our  own,  whenever  the  parties  choose  to  resort  to  our 
courts  for  redress.  Of  course  the  rule  must  be  applied,  if  applied 
at  all,  as  well  when  it  operates  against  foreign  ships  as  when  it  operates 
in  their  favor. 

English  cases  have  been  cited  to  show  that  the  courts  of  that  coun- 
try hold  that  their  statutes  prior  to  1862,  which  in  generality  of  terms 
were  similar  to  our  own,  did  not  apply  to  foreign  ships.  See  The  Nos- 
tra Signora  de  los  Dolores,  1  Dod.  290;  The  Carl  Johan,  cited  in 
The  Dundee,  1  Hagg.  Adm.  109,  113 ;  The  Girolamo,  3  Hagg.  Adm. 
169,  186 ;  The  Zollverein,  1  Swab.  96 ;  Cope  v.  Doherty,  4  Kay  &  J. 
367,  2  De  Gex  &  J.  614;  General  Iron  Screw  Collier  Co.  v.  Schur- 
majins,  1  Johns.  &  H.  180 ;  The  Wild  Ranger,  1  Lush.  553.  We  have 
examined  these  cases.  So  far  as  they  stand  on  general  grounds  of 
argument,  the  most  important  consideration  seems  to  be  this,  that  the 
British  legislature  cannot  be  supposed  to  have  intended  to  prescribe 
regulations  to  bind  the  subjects  of  foreign  states,  or  to  make  for  them 
a  law  of  the  high  sea;  and  that  if  it  had  so  intended,  it  could  not  have 
done  it.  This  is  very  true.  No  nation  has  any  such  right.  Each  n^- 
tion,  however,  may  declare  what  it  will  accept  and,  by  its  courts,  en- 


Ch.    2)  OBLIGATIONS.  507 

force  as  the  law  of_the  sea^_wJieJlj£arties  chooseJoj;^sortJxLils_iai:um 
foTTeHressl  Andjio  person  subject  to  its  jurisdiction,  oi^seej<[ng  ius_- 
tice  ill  I'fT'courts^caiT^ complain  of  tHe  defenTiiiiation  of  their  rio^hts 
oy  that  la w7 unless  they~caii'propound  sqine  otlier  law  by  which  they 
ought  to  be  jud^edjjand  this  they^"cannot  do  except  where  both  par- 
ties  belong_to_the  same  Toreign  nation ;  in  which  case^  it  is  true,  they 
may  well  claim  to  hay^__their  controversy  settled^by  their  own  jaw. 
Perhaps  a  liKe^aim  might  be  rnide  where  the  parties^beTongtoaif- 
ferent  nations  having  the  same  system  of  law  But  where  they  belong 
to  the  country  in  whose  forum  the  litigation  is  instituted,  or  to  differ- 
ent countries  having  different  systems  of  law,  the  court  will  administer 
the  maritime  law  as  accepted  and  used  by  its  own  sovereignty. 

The  English  courts  say  that,  as  foreigners  are  not  subject  to  their 
law,  nor  entitled  to  its  benefits,  they  will  resort  to  the  general  law 
of  general  liability  when  foreigners  are  litigants  before  them.  Where 
do  they  find  such  general  law  ?  In  the  law  of  nature  ?  or  the  civil  or 
common  law  ?  Is  not  the  maritime  law,  as  their  own  legislature  or  na- 
tional authority  has  adopted  it,  as  imperative  as  either  of  these?  Does 
it  not,  in  the  British  judicial  conscience,  stand  for  the  law  of  nature, 
or  general  justice?  As  for  the  civil  and  common  laws,  they  are  only 
municipal  laws  where,  they  have  the  force  of  laws  at  all.  The  better 
grounds  for  the  English  decisions  seem  to  be  the  peculiar  terms  of  the 
acts  of  parliament  on  the  subject,  and  the  supposed  policy  of  those 
acts,  as  being  intended  for  the  encouragement  of  the  British  marine. 
From  these  considerations,  as  grounds  of  construction,  the  conclusion 
may  have  been  properly  deduced  that  the  law  was  intended  to  be  con- 
fined to  British  ships.  The  question,  it  is  true,  has  ceased  to  be  of 
practical  importance  in  England,  since  the  act  of  18G2  (25  &  26  Vict. 
c.  63),  by  which  the  owners  of  any  ship,  British  or  foreign,  are  not 
to  be  answerable,  without  their  actual  fault  or  privity,  for  any  loss 
or  damage  to  person  or  property,  to  an  amount  exceeding  £15  per  ton 
of  the  ship's  registered  tonnage,  or  its  equivalent  in  case  of  foreign 
ships.  But  the  former  English  decisions  are  thought  to  have  a  bear- 
ing on  our  law,  because  the  acts  of  parliament  to  which  they  related, 
in  their  principal  clauses,  were  conceived  in  the  same  broad  and  gen- 
eral terms  as  our  act  of  congress.  Some  of  the  clauses  of  the  British 
acts,  however,  relating  to  registered  tonnage  and  other  particulars, 
admitted  only  a  special  application  to  British  ships;  and  perhaps  these 
clauses  did  require  a  restricted  construction  of  the  whole  acts  to  such 
shipSi 

But  there  is  no  demand  for  such  a  narrow  construction  of  our  stat- 
ute, at  least  of  that  part  of  it  which  prescribes  the  general  rule  of 
limited  responsibility  of  ship-owners.  And  public  policy,  in  our  view, 
requires  that  the  rules  of  the  maritime  law  as  accepted  by  the  United 
States  should  apply  to  all  alike,  as  far  as  it  can  properly  be  done.  If 
there  are  any  specific  provisions  of  our  law  which  cannot  be  applied 
to  foreigners,  or  foreign  ships,  they  are  not  such  as  interfere  with 


508  PARTICULAR  SUBJECTS.  (Part  2 

the  operation  of  the  general  rule  of  limited  responsibility.  That  rule, 
and  the  mode  of  enforcing  it,  are  equally  applicable  to  all.  They  are 
not  restricted  by  the  terms  of  the  statute  to  any  nationality  or  domi- 
cile. We  think  they  should  not  be  restricted  by  construction.  Our 
opinion,  therefore,  is  that  in  this  case  the  National  Steamship  Com- 
pany was  entitled  to  the  benefit  of  the  law  of  limited  responsibil- 
ity.^^    *     *     * 

87  Accord:   The  Leon,  6  P.  D.  148  (1881). 

A  ship  will  not  be  open  to  blame  for  following  the  sailing  regulations  and 
rules  of  navigation  prescribed  by  its  government  for  its  direction  on  the 
high  seas.    The  Scotia,  14  Wall.  170,  20  L.  Ed.  822  (1871). 

Damages  in  admiralty  for  the  death  of  a  human  being  on  the  high  seas, 
caused  by  negligence,  are  not  recoverable  in  the  absence  of  an  act  of  Con- 
gress. The  Harrisburg,  119  U.  S.  199,  7  Sup.  Ct.  140,  30  L,  Ed.  358  (1886). 
But  where  the  law  of  the  state  to  which  a  vessel  belongs  gives  such  right  of 
action,  and  the  death  occurs  on  the  high  seas  on  board  of  the  vessel,  it  will 
be  enforced  in  an  admiralty  court  of  the  United  States  as  a  claim  against 
the  fund  arising  in  a  proceeding  to  limit  liability.  The  Hamilton,  207  U. 
S.  398,  28  Sup.  Ct.  133,  52  L.  Ed.  264  (1907) ;  La  Bourgogne,  210  U.  S.  95,  28 
Sup.  Ct.  6G4,  52  L.  Ed.  973  (190S). 

In  regard  to  collisions  upon  the  high  seas,  see,  in  general,  G.  Phillip  Ward- 
ner.  The  Enforcement  of  a  Right  of  Action  Acquired  under  Foreign  Law 
for  Death  upon  the  High  Sea,  21  Harv.  L.  Rev.  1-23,  75-91. 

The  law  of  the  owner's  state  and  not  that  of  the  state  where  the  ship  is 
registered  has  been  applied  to  a  tort  committed  on  a  ship  upon  the  high  seas. 
International  Nav.  Co.  v.  Lindstrom,  123  Fed.  475,  60  C.  C.  A.  649  (1903).  In 
favor  of  the  general  maritime  law,  see  Elder  Dempster  Shipping  Co.  v  Poup- 
pirt,  125  Fed.  732,  60  C.  C.  A.  500  (1903). 

Collisions  occurring  within  the  territorial  waters  of  a  nation  and  torts  com- 
mitted upon  a  vessel  within  such  territorial  waters  have  been  held  to  be  gov- 
erned by  the  law  of  the  state  within  whose  waters  thev  occurred.  Smith  v. 
Condry,  1  How.  28,  11  L.  Ed.  35  (1843)  ;  Geoghegan  v.  Atlas  S.  S.  Co.,  22  N  Y. 
Supp.  749.  3  Misc.  Rep.  224  (1893).  See,  also,  Charles  N.  Gregory,  Jurisdiction 
over  Foreign  Ships  in  Territorial  Waters,  2  Mich.  Law  Rev.  333-357. 

Salvage  is  determined  by  the  maritime  law  as  generally  adopted  by  mari- 
time nations.    Anderson  v.  The  Edam  (D.  C.)  13  Fed.  135  (1882). 

General  average  is  adjusted  in  accordance  with  the  law  of  the  port  of 
discharge.  Simonds  v.  White.  2  B.  &  Ch.  805  (1824) ;  The  Energia  (D.  C.) 
61  Fed.  222  (1894).  Accord:  France.  App.  Rouen,  March  20,  1878  (5  Clunet, 
599).  Germ  ami.  8  R.  O.  H.  G.  289  (Dec.  23,  1872).  Compare:  O.  L.  G.  Ham- 
burg, Jan.  30,  1893  (4  Niemeyer.  353).  But  if  the  voyage  is  not  completed,  the 
law  of  the  place  where  it  was  broken  up  mav  become  applicable.  The  Eliza 
Lines  (C.  C.)  102  Fed.  1.84  (1900).  affirmed  114  Fed.  307.  52  C.  C.  A.  195  (1902) ; 
National  Board  of  Marine  Underwriters  v.  Melchers  (D.  C.)  45  Fed.  643  (1891). 

CoNTiNENTAi,  Law. — It  is  Said  that  collisions  in  the  territorial  waters  of  a 
nation  are  governed  by  the  local  law.  France,  App.  Caen.  June  23.  1897 
(13  Autran.  282):  Cass.  .Tnlv  IS,  1895  (S.  1895,  1.  30.5)  Cass.  Feb.  15.  1905  (S. 
1905,  1,  209).  Germany.  R.  G.  May  30.  1888  (44  Seuffert's  Archiv.  133) ;  R.  G. 
Dec.  11,  1901  (12  Niemeyer.  121).  But  in  each  of  the  above  cases  the  collision 
occurred  within  the  territorial  waters  of  the  country  where  the  suit  was 
brought.  German  law  has  been  held  applicable  to  a  collision  between  Ger- 
man vessels  in  foreign  waters.  Supreme  Hans.  Ct..  Nov.  12,  1906  (22  Autran, 
6(JG).  In  Italy  the  liability  of  the  owner  of  a  vessel  for  the  wrongful  acts  of 
the  captain  has  been  determined  with  reference  to  the  law  of  the  place 
where  the  mandate  was  given.  Trib.  Civ.  Naples,  June  5,  1899  (15  Autran, 
524). 

If  the  collision  occurred  upon  the  high  seas,  French  courts  will  apply  the 
national  law  of  the  offending  vessel.  Cass.  Nov.  4,  1891  (S.  1892,  1,  GO) ;  App. 
Rennes,  Dec.  21,  1887  (S.  1888.  2.  25)  and  note  by  Ch.  Lyon-Caen  ;  Trib.  Com. 
Marseilles,  Dec.  21,  1900  (10  Autran,  809).     So  Italy,  Cass.  Turin,  April  IT, 


Ch.  2)  OBLIGATIONS.  509 

1903  (19  Autran,  478) ;  App.  Genoa,  Dec.  10,  1894  (S.  1896,  4,  9)  and  note ;  but 
in  App.  Gt'uoa,  March  24,  19012  (17  Autran,  645),  the  national  law  of  the  vessel 
collided  with  was  held  to  govern.  The  German  coiTrts  apply  the  law  of  the 
forum  (R.  G.  Nov.  10,  1900  [12  Niemeyer,  457J ;  R.  G.  Oct.  22,  1902  [31  Clunet, 
406]),  unless  both  vessels  belong  to  the  same  country  or  are  subject  to  the  same 
law,  in  which  event  such  law  will  govern  (49  R.  G.  182  [Nov.  18,  1901]). 
See,  also,  Louis  Franck,  De  I'abordage  en  droit  international,  22  Clunet,  952- 
981 ;  P.  Turgon,  De  la  competence  des  tribunaux  frangais  en  cas  d'abordage 
entre  navlres  strangers,  22  Autran,  245-256. 

Quasi  Contracts  and  Statutory  Liabilities. — Quasi  contractual  obliga- 
tions will  in  general  be  determined  in  accordance  with  the  law  of  the  place 
where  such  obligations  arise.  See  Healy  v.  Gorman,  15  N.  J.  Law,  328,  ante 
p.  348;  Curtis  v.  Delaware,  L.  &  W.  R.  Co.,  74  N.  Y.  116,  30  Am.  Rep.  271, 
ante,  p.  350. 

As  to  the  enforcement  abroad  of  the  statutory  liability  of  stockholders  and 
directors,  see  Beale  on  Foreign  Corporations,  595-616,  and  34  L.  R.  A.  737-763. 
Such  liability  will  be  enforced  by  the  courts  of  other  states  if  they  can  do  so 
without  injustice  to  any  of  the  stockholders.  Whitman  v.  Oxford  Nat.  Bank, 
176  U.  S.  559,  20  Sup.  Ct.  477,  44  L.  Ed.  587  (1900) ;  Miller  v.  Smith,  26  R.  I. 
146,  58  Atl.  634.  66  L.  R.  A.  473,  106  Am.  St.  Rep.  699  (1904).  But  see  Converse 
V.  Hamilton  (Wis.)  118  N.  W.  190  (1908).  As  to  whether  a  state  in  which  a 
foreign  corporation  transacts  business  has  the  power  to  impose  a  statutory 
liability  upon  its  stockholders  which  shall  be  recognized  by  the  courts  of  other 
states,  see  Pinney  v.  Nelson,  183  U.  S.  144,  22  Sup.  Ct.  52,  46  L.  Ed.  125  (1901) : 
Risdon  I.  &  L.  Works  v.  Furness,  74  L.  J.  K.  B.  243  (1904).  See,  also,  18 
Harv.  L.  Rev.  452,  and  6  Col.  L,  Rev.  45 ;  W.  N.  Hohfeld,  Nature  of  Stock- 
holders' Individual  Liability  for  Corporation  Debts,  9  Col.  L.  Rev.  285-320, 
492-522 ;   10  Col.  L.  Rev.  283-326,  520-549. 


510  PARTICULAR  SUBJECTS.  (Part  2 

CHAPTER  m. 

FAMILY  LAW. 


SECTION   1.— MARRIAGE. 


In  re  H.ALL. 

(Supreme  Court,  Appellate  Division,  New  York,  1901.     61  App.  Div.  26G,  70 

N.  Y.  Supp.  406.) 

Smith,  J.^  Unless  the  appellant  was  the  illegitimate  son  of  Alice 
Maude  Fithian,  and  therefore  not  of  kin  to  EUa  Maria  Fithian,  named 
in  the  will,  the  decree  of  the  surrogate  cannot  stand. 

Edwin  Fithian,  the  father  of  Alice  Maude  Fithian,  was  a  retired 
American  naval  officer.  While  traveling  in  Europe,  the  daughter,  Alice 
Maude,  was  placed  in  a  school  at  Milan.  From  there  she  eloped  at  the 
age  of  19  with  Alberto  Martinez,  a  citizen  of  the  Argentine  Republic. 
They  went  to  Paris,  where  they  stayed  not  more  than  four  days,  when 
they  departed  for  the  Argentine  Republic.  At  Paris  some  form  of  mar- 
riage service  was  performed.  At  Buenos  Ayres  they  lived  as  husband 
and  wife  for  about  18.  months,  when  Martinez  sent  her  to  her  father,  in 
England,  and  thereafter  refused  to  live  with  her  or  to  support  her,  and 
deserted  her.  Thereafter  the  said  Alice  Maude  came  with  her  father 
to  Dakota,  where  a  judgment  of  divorce  against  Martinez  is  claimed  to 
have  been  obtained.  She  thereafter  married  Richmond  Kingman  in 
Dakota,  where  to  that  marriage  this  appellant  was  born.  The  surro- 
gate has  found  that  a  valid  marriage  was  contracted  with  Martinez 
in  France,  and  that  the  decree  of  divorce  obtained  in  Dakota  was  in- 
valid on  the  ground  that  the  said  Alice  Maude  had  not  at  the  time  of 
the  commencement  of  the  action  established  a  domicile  in  the  state  of 
Dakota  sufficient,  under  the  laws  of  Dakota,  to  give  jurisdiction  to  the 
court  to  grant  a  decree. 

Three  questions,  then,  require  examination :  First.  Did  the  surro- 
gate properly  hold  that  a  valid  and  binding  marriage  had  been  con- 
tracted by  Alice  Maude  Fithian  with  Alberto  Martinez  in  Paris  ?^ 
Second.  Did  Alice  Maude  acquire  in  Dakota,  prior,  to  the  commence- 
ment of  her  action,  a  domicile  sufficient  to  give  jurisdiction  to  the  Da- 
kota court  to  authorize  the  decree  of  divorce?  Third.  If  the  decree 
of  divorce  granted  in  Dakota  was  valid  in  that  state,  can  this  infant 

1  The  statement  of  facts  has  been  omitted. 

2  Only  so  much  of  the  opinion  is  given  as  relates  to  tBe  first  question. 


Ch.    3)  FAMILY  LAW.  511 

appellant  take  property  as  one  of  the  next  of  kin  of  Ella  ]\Iaria  Fithian, 
under  the  laws  of  this  state? 

1.  The  record  contains  the  Civil  Code  of  France,  by  which  mar- 
riages are  regulated.  By  that  law  it  is  required  that  a  marriage  be 
celebrated  at  the  domicile  of ^tJTT^of  the  parties,  and  a  residence  _ol. 
six  months  is  required  to  constitute  such  a  domicile;  that  a  record 
of  the~  proposed  marriage  be  made,  and  two  publications  thereof," 
with  an  interyaTof  eight  days  between  them,  on  a  Sunday,  before  the 
door  of  the^town  hall ;  that  the  consent  of  the  girl's  parents,  if  living, 
if  she  be  under  the 'age  of  21  years,  appear;  and  that  the  celebration 
of  the  mafrtage  be  had  before  a  civil  officer.  It  appears  in  this  case 
that  with  none  of_tliese  conditions  did  the  parties  comply.  They 
were  in  Paris  not  to  exceed  three  or  four  days  before  the  marriage 
ceremony  claimed.  No  domicile,  therefore,  could  have  been  acquired. 
No  publication  could  have  been  made  in  accordance  with  the  laws  of 
France.  The  father's  consent  was  confessedly  wanting.  In  fact, 
it  is  admitted  and  found  by  the  learned  surrogate  that  the  marriage 
was  not,  and.CQuld  not  have  been,  performed  in  accordance  with  the 
requirements  of  the  Civil  Code  of  France.  The  marriage  is  held  valid 
by  the  surrogate,  however,  as  a -putative  marriage  under  a  supposed 
fiction  of  the  French  law.  The  statutory  basis  of  such  a  finding  is 
contained  in  the  following  articles  of  the  Civil  Code  of  France: 

"Art.  201.  If  a  marriage  has  been  declared  void,  not  only  the  par- 
ties to  the  marriage  but  the  issue  thereto  shall  nevertheless  enjoy  all 
civil  rights  resulting  therefrom,  if  the  marriage  was  contracted  in 
good  faith. 

"Art.  202.  If  only  one -party  was  in  good  faith,  only  the  party  in 
good  faith  and  the  issue  of  the  marriage  shall  be  entitled  to  the  civil 
rights  resiiTting  Therefrom."  (See  Kelly's  French  Law  of  ]\Iarriage 
[2d  Ed.]  170.)  "" 

The  surrogate  has  found  that  the  marriage  in  France  was  contracted 
by  Alice  Maude  in  good  faith.  If  it  were  necessary  to  review  this  find- 
ing, a  serious  question  is  presented, — whether  good  faith,  in  the  eye 
of  the  law,  can  co-exist  with  an  elopement  and  clandestinity.  Au- 
thorities are  not  wanting  wdiich  hold  that  clandestinity  is  incompatible 
with  the  good  faith  required  by  law  to  give  civil  rights  in  an  il- 
legal marriage.  But  assume,  for  the  argument,  that  the  attempted  mar- 
riage was,  contracted  by  her  in  good  faith.  It  is  not  found,  nor  could 
it  be  found,  that  there  was  good  faith  on  the  part  of  Alartinez.  To 
him  the  French  law  gave  no  civil  rights  of  the  marriage.  These 
sections  of  the  Civil  Code  are  found  in  a  chapter  of  the  Code  entitled 
"Of  Actions  to  Annul  Marriage."  There  is  no  other  provision  of  the 
French  law  determining  what  shall  be  the  rights  of  parties  innocent 
or  guilty,  to  a  marriage  not  contracted  with  the  formalities  required 
by  law.  The  learned  surrogate  has  held  that  this  "putative  marriage," 
as  he  calls  it,  constituted  a  valid  marriage,  which  was  a  bar  to  the 
remarriage  of  Alice  Maude  before  it  was  annulled  by  a  court  of  com- 


512  PARTICULAR  SUBJECTS.  (Part  2 

petent  jurisdiction.  Is  this  conclusion  correct?  While  it  was  un- 
doubtedly competent  for  the  French  government  so  to  declare  of 
marriages  there  celebrated,  it  has  been  seen  that  they  have  not  express- 
ly so  declared.  Such  an  important  provision  in  the  law,  if  not  express- 
ed, should  be  found  only  by  necessary  implication.  In  the  first  place, 
such  implication  is  not  warranted  by  the  sections  of  the  French  Code. 
It  might  well  be  inferred  that  the  rights  assured  to  an  innocent  party 
to  a  void  marriage  upon  annulment  should  belong  to  such  a  party 
before  an  annulment  of  the  attempted  marriage.  But  those  rights  are 
simply  the  civil  rights  of  property.  The  purpose  of  the  law  in  grant- 
ing civil  rights  to  an  innocent  party  is  fully  accomplished  by  accord- 
ing to  her  and  her  children  the  rights  of  property.  It  can  add  nothing 
to  give  her  a  status  as  a  married  woman.  Such  a  construction  would, 
and  in  this  case  has,  worked  to  the  detriment,  rather  than  the  benefit 
of  the  person  for  whose  benefit  the  law  was  enacted.  The  very  faci 
that  those  rights  are  given  only  to  an  innocent  party,  while  withheld 
from,  a  party  not  innocent,  is,  to  our  minds,  convincing  of  an  inten^i 
to  award  to  the  innocent  party  only  property  rights,  and  legitimacy 
to  the  childr&n.  The  marriage  is  not  declared  valid,  even  though 
both  parties  be  innocent.  Much  less  could  it  be  if  one  party  only  be 
innocent,  and  the  civil  rights  of  the  marriage  refused  to  a  guilty  par- 

The  respondent's  counsel  upon  the  argument  further  claimed  the 
marriage  in  France  valid  upon  the  ground  that,  as  neither  Alice  Maude 
nor  Martinez  were  residents  of  France,  the  French  law  was  not  ap- 
plicable. We  are  referred  to  the  case  of  Loring  v.  Thorndike,  re- 
ported in  5  Allen  (Mass.)  at  page  257.  In  that  case  an  Aniericar. 
and  a  resident  of  Mayence,  in  the  grand  duchy  of  Hesse-Darmstadt 
were  temporarily  residing  in  the  free  city  of  Frankfort,  in  Germany 
Neither  of  them  ever  had  any  domicile  there.  Upon  making  inquiries 
of  magistrates  and  counsel,  they  were  advised  that  they  could  be  legal- 
ly married  before  the  consul  of  the  United  States.  There  was  there- 
upon a  marriage  agreement  drawn  up  and  signed,  and  the  consul  de- 
clared their  marriage  legal  and  valid.  The  validity  of  this  marriage 
was  questioned  by  reason  of  the  fact  that  it  was  not  perfonned  in  ac- 
cordance with  the  laws  of  the  city  of  Frankfort.  The  court,  however, 
held  that  the  formalities  specifically  required  by  the  Frankfort  law 
were  not  applicable  to  foreigners,  but  the  marriage  was  valid  in 
Frankfort,  "as  having  been  duly  contracted  according  to  the  prescrip- 
tion of  that  portion  of  the  common  law  which  had  not  there  been  abro- 
gated or  repealed."  If,  then,  the  common  law  was  in  force  in  Frank- 
fort, as  it  appears,  and  if  the  special  marriage  laws  made  did  not  ap- 
ply to*  foreigners  temporarily  there,  the  parties  were  there  married 
in  accordance  with  the  laws  of  Frankfort,  and  the  marriage  valid 
there  was  valid  everywhere.  Assuming,  then,  for  the  argument,  that 
the  formalities  required  by  the  laws  of  France  do  not  apply  to_for- 
eigners  temporarily  in  France,  there  is  no  proof  that  the  conunon 


Ch.    3)  FAMILY  LAW.  513 

law  is  there  applicable,  so  as  to  render  valid  a  common-law  marriage. 
In  fact,  the  court  will  take  judicial  notice  that  the  common  law  is 
not,  and  never  was,  in  force  in  France. 

It  is  further  urged  that  the  marriage  will  be  presumed  to  have  been 
contracted  at  a  consulate.  But,  to  be  valid  if  there  contracted,  it  must 
accord  with  the  laws  of  the  domicile  of  the  contracting  parties.  Here 
the  contracting  parties  had  no  common  domicile.  While,  perhaps,  un- 
der the  laws  of  the  domicile  of  Alice  jMaude  a  common-law  marriage 
would  be  valid,  not  so  under  the  laws  of  the  domicile  of  Martinez. 
In  the  record  appear  the  laws  of  the  Argentine  Republic.  No  facts 
appear  in  the  record  which  would  justify  a  finding  that  the  marriage 
was  contracted  in  accordance  with  these  laws,  nor  is  such  a  finding 
claimed.  The  marriage,  then,  appears  to  have  been  invalid  both  b}' 
the  laws  of  France  ajfi'd  by  the  laws  of  the  Argentine  Republic,  the 
domicile  of  the  husband.  Alberto  Martinez  was  never  married  to 
Alice  Maude.  He  was  not  her  husband.  If  the  conclusion  of  the 
learned  surrogate  be  correct,  she  was  a  married  woman  without  a 
husband.  This  is  clearly  a  legal  paradox.  There  can  be  no  marriage 
vinculum  which  does  not  bind  both  parties.  In  Atherton  v.  Atherton, 
181  U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794,  Justice  Gray,  in 
writing  for  the  United  States  supreme  court,  says,  "A  husband  without 
a  wife,  or  a  wife  without  a  husband,  is  unknown  to  the  law."  The 
assumed  marriage,  not  binding  uport  Martinez,  except  possibly  to 
bind  hTm  for  her  support,  did  not  invest  her  with  the  status  of  a  mar- 
ried woman.  Alice  Maude  therefore  had  capacity  at  any  place  to 
contract  the  marriage  with  Kingman,  and  the  appellant  is  her  lawful 
offspring. 

We  do  not  here  decide  whether  the  French  law  is  applicable  to  the 
marriage  of  foreigners  temporarily  in  France,  either  as  to  the  formal- 
ities required,  or  as  to  the  civil  rights  acquired  thereunder.  Nor  do 
we  decide  whether  under  that  law  civil  rights  are  given  to  an  inno- 
cent party  to  an  attempted  marriage,  in  disregard  of  every  formality 
required  by  that  law.  We  are  unable  to  find  a  binding  marriage 
under  any  law  which  can  be  applicable  to  the  conditions  here  existing, 
and,  even  though  under  the  law  civil  rights  attached  to  this  marriage, 
such  civil  rights  create  no  marriage  status.^     *     *     * 

3  See  57  L.  R.  A.  155-159,  and  1  Bishop  on  Marriage,  Divorce  &  Separation, 
§§   890-906. 

As  to  wlietber  compliance  with  tl^e  local  law  as  to  form  is  obligatory,  seo 
Ruding  V.  Smith,  2  Hagg.  Cons.  STL  390  (1821) ;  Kent  v.  Burgess,  11  Sim. 
361  (1840) ;  Hynes  v.  McDermott.  6'-  N.  Y.  41,  37  Am,  Rep.  538  (1880) ;  Id., 
91  N.  Y.  451,  43  Am.  Rep.  677  (1883). 

As  to  marriages  celebrated  upon  the  high  seas,  consult  Norman  v.  Norman,       / 
121  Cal.  620,  54  Pac.  143,  42  L.  R.  A.  343,  66  Am.  St.  Rep.  74  (1898);  Dicey,       '^ 
Conflict  of  Laws,  620-621 ;  J.  Dundas  White,  Marriages  at  Sea,  17  Law  Quar. 
Rev.  283-292;  A.  H.  Charteris,  Marriage  on  the  High  Seas,  19  Juridical  Re- 
view, 178-182. 

As  to  marriages  celebrated  before  a  consular  or  diplomatic  officer,  see  Rev. 
LoE.CoNF.L,— 33 


514  PARTICULAR  SUBJECTS.  (Part  2 

OGDEN  V.  OGDEN. 

(Court  of  Appeal,  1907.    [1908]  Prob.  46,  77  L.  J.  Prob.  34.) 

Leon  Philip,  a  French  subject  and  domiciled  in  France,  being-  a 
temporary  resident  in  England,  married,  September,  1898,  Sarah  Helen 
Williams,  an  Englishwoman,  domiciled  in  England.  The  ceremony 
was  in  English  form  and  took  place  in  England.  The  parties 
cohabited  for  a  short  time  in  England,  whereupon  Philip's  father 
went  over  to  England  and  took  his  son  to  France.  In  1901,  the 
marriage  was  annulled  by  a  decree  of  a  French  tribunal  on  the  ground 
that  the  consent  of  the  parents  as  required  by  French  law  (Philip  be- 
ing actually  only  19  years  of  age),  had  not  been  obtained.  Philip 
having  married  again  in  France,  Sarah  instituted,  in  1903,  a  suit  in 
England  for  the  dissolution  of  her  alleged  marriage  with  him  on 
the  ground  of  desertion  and  adultery.  This  petition  was  dismissed 
on  the  ground  of  want  of  jurisdiction.  In  1904,  Sarah  married  Wil- 
liam Henry  Ogden  in  England.  In  1906,  Ogden  instituted  a  suit  to 
obtain  a  decree  of  nullity  of  the  marriage  on  the  ground  that  Sarah's 
previous  marriage  to  Philip  had  not  been  annulled  or  dissolved  for 
any  cause  competent  according  to  the  law  of  England.  Bargrave 
Deane,  J.,  rendered  a  decree  in  favor  of  petitioner.  From  this  de- 
cision an  appeal  was  taken.* 

Sir  GoRELL  Barnes,  President.'^  This  is  an  appeal  in  a  case  of 
considerable  importance  and  interest,  more  especially  to  persons  in 
this  country  who  have  entered  into,  or  contemplate  entering  into, 
matrimonial  relations  with  foreigners.  The  facts  which  give  rise  to 
the  question  are  these.  [Having  stated  the  facts  as  above  set  out,  his 
Lordship  continued:]  The  case  was  very  fully  and  ably  argued  by 
counsel  on  behalf  of  the  respective  parties,  and  two  points  were  made 
for  the  appellant  by  her  counsel,  Sir  Edward  Clarke;  the  first,  that 
her  marriage  with  Leon  Philip -was  not  valid,  inasmuch  as,  although 
the  marriage  was  celebrated  according  to  the  forms  required  by  the 
law  of  England,  it  was  invalid  both  in  this  country  and  in  France,  be- 
cause Leon  Philip  was,  by  the  law  of  France,  being  the  law  of  his 
country  and  his  domicil,  incapable  of  contracting  the  marriage ;  the 
second,  that  the  effect  of  the  French  decree  was  to  annul  the  mar- 
riage, both  in  France  and  in  this  country.  If  both  or  either  of  these 
points  were  established  in  favour  of  the  appellant,  the  contention  on 
her  part  which  followed  as  a  matter  of  course  was  that  at  the  time  of 

St.  U.  S.  §  4082  (U.  S.  Comp.  St.  1901,  p.  2768) ;  2  Moore,  Int.  Law  Digest,  §§ 
237-240;    2  Wharton,  Int.  Law  Digest,  §  261. 

As  to  extraterritorial  privileges,  see  2  Moore,  Int.  Law  Digest,  §§  238-239. 

See,  also.  Dicey,  Conflict  of  Laws,  613-633;  Westlake,  Priv.  Int.  Law,  62- 
67;  G.  Addison  Smith,  The  Marriage  of  British  Subjects  Abroad.  19  Juridical 
Review,  369-385. 

4  This  brief  statement  has  been  substituted  for  that  of  the  original  report. 

6  Portions  of  the  opinion  have  been  omitted. 


Ch.    3)  FAMILY  LAW.  515 

the  ceremony  of  marriage  between  herself  and  Mr.  Ogden  she  was 
free  to  contract  a  marriage  with  him,  and  that,  therefore,  her  mar- 
riage with  him  was  vahd,  and  his  petition  should  be  dismissed. 

Evidence  was  given  at  the  trial  of  the  French  law  upon  which  the 
appellant  relied.  The  French  Civil  Code  was  put  in,  and  various  sec- 
tions of  that  Code  were  referred  to  on  the  argument  of  this  appeal, 
to  some  of  which  it  is  necessary  to  draw  attention.  By  article  1,  §  3, 
the  laws  relating  to  the  condition  and  privileges  of  persons  govern 
Frenchmen  although  residing  in  a  foreign  country.  By  title  II,  §  63, 
two  publications  with  an  interval  of  eight  days  between  them  have  to 
be  made,  containing  particulars  of  the  proposed  marriage.  Title  V 
contains  (inter  alia)  provisions  which,  translated  into  English,  are 
as  follows :  [Having  read  the  articles  from  the  French  Civil  Code  set 
out  above,®  His  Lordship  proceeded:]  It  would  seem  from  these  pro- 
visions that  a  marriage  without  the  necessary  consent  or  publication 
is  not  made  by  the  Code  void  from  the  outset,  but  will  only  be  de- 
clared void  if  proceedings  for  that  purpose  are  taken  by  the  proper 
parties  in  proper  time,  and  will  be  valid  unless  the  declaration  is  made. 

These  being  the  facts  and  the  points  raised,  counsel  for  the  ap- 
pellant endeavoured  to  support  his  first  point  by  urging  before  the 
court  certain  propositions  which  were  wider  than  that  which  it  is 
necessary  to  consider  for  the  purpose  of  determining  the  present  case. 
It  is  not  necessary  in  this  case  to  consider  what  are  the  principles 
which  ought  to  govern  a  decision  in  England  upon  the  question  of 
the  validity  in  this  country  of  a  marriage  celebrated  therein  between 
two  foreigners  domiciled  abroad  and  incapable  by  the  law  of  their 
domicil  of  mafrying  each  other  at  all.  It  is  not  even  necessary  for 
the  decision  of  this  case  to  consider  what  has  been  or  ought  to  be  de- 
cided as  to  the  validity  of  a  marriage  entered  into  in  England  be- 
tween two  foreigners  domiciled  abroad  where  they  have  come  to 
this  country  in  order  to  avoid  a  difficulty  wuth  regard  to  formalities 
which  are  required  by  the  law  of  their  domicil  for  the  celebration 
of  a  valid  marriage  in  their  own  country. 

The  simple  question  for  determination  in  the  present  case  upon  the 
first  point  is"wh ether  or  not  a  marriage  taking  place  in  England  be- 
tween an  English  person  domiciled  in  England  with  a  foreigner  tem- 
porarily residing  in  this  country,  which  it  was  not  disputed  would  be 
held  in  England  to  be  a  valid  marriage  if  celebrated  between  two  in- 
habitants of  this  country,  ought  to  be  held  invalid  on  the  ground  that 
the  foreigner  was  by  the  statute  law  of  his  country  subjected  to  the 
necessity  of  complying  with  certain  formalities  in  order  to  be  at  liberty 
to  enter  into  the  marriage.  It  is  desirable  to  state  this  limited  propo- 
sition very  clearly,  because,  with  regard  to  questions  which  may  be 
raised  as  to  the  validity  of  marriages  in  England  between  persons 

6  The  articles  referred  to,  which  have  been  omitted,  were  144,  148-153,  170, 
182,  183,  185,  201,  and  202. 


516  PARTICULAR  SUBJECTS.  (Part  2 

domiciled  abroad,  certain  cases  have  been  decided  (to  which  reference 
will  be  made  further  on  in  this  judgment)  which  do  not  necessarily 
involve  the  consideration  of  the  particular  point  already  indicated,  or 
any  decision  thereupon;  and  it  is  desirable,  therefore",  to  avoid  the 
confusion  which  appears  to  have  arisen  sometimes  between  the  con- 
sideration of  the  principles  which  have  been  laid  down  for  determining 
the  validity  of  a  marriage  where  the  ceremony  alone  was  in  question, 
and  of  those  which  have  been  considered,  in  determining  whether  it 
was  lawful  for  the  parties  to  intermarry  at  all. 

Now,  the  argument  for  the  appellant  in  the  present  case  was  that, 
although  the  marriage  between  her  and  Leon  Philip  was  celebrated 
according  to  the  forms  required  by  the  English  law,  it  was  invalid 
universally  because  Leon  Philip  was  a  minor  in  France,  and  under  a 
disability  by  the  law  of  France  from  contracting  such  marriage  with- 
out the  consent  of  his  father,  and  without  complying  with  the  other 
formalities  required  by  the  law  of  France.  In  substance  this  con- 
tention  jimounted  to  this — that  in  regard  to  entering  into  a  marriage 
in  England  with  an  inhabitant  thereof,  Leon  Philip  carHed  with  "Elm 
into  this  country  an  incapacity,  which  ought  to  be  recognized  by  the 
law  of  England,  to  enter  into  matrimonial  relationship  with  such  in- 
habitant without  complying  with  the  provisions  of  the  French  Code. 
It  was  urged  that  this  principle  had  been  recognized  in  this  country, 
and  cases  were  cited  which  it  was  said  supported  the  contention.  The 
cases  cited,  however,  do  not  support  it,  and  in  truth  the  argument  on 
behalf  of  the  appellant  appears  to  be  based  upon  views  which  have  been 
expressed  by  foreign  jurists,  but  which  have  not  been  adopted  in 
this  country,  where  the  English  courts  have  not  been  very  ready  to 
admit  a  personal  law  of  status  and  capacity  dependent  on  domicil, 
and  travelling  with  the  person  from  country  to  country,  although  there 
has  been,  perhaps,  less  unwillingness  in  later  years  to  give  effect  to 
the  lex  domicilii  to  some  extent;  see,  for  instance,  In  re  Goodman's 
Trusts,  (1881)  17  Ch.  D.  266.     *     *     * 

It  would  needlessly  lengthen  this  judgment  to  set  out  the  passages 
from  foreign  jurists  bearing  upon  this  subject,  and  itjsjiot  necessary 
to  examine  at  length  those  cases  or  those  passages  in  the  above-men- 
tioned work^  or  other  commentaries  which  deal  with  cases  in  which 
a  marriage  is  entirely  prohibited  by  the  laws  of  the  domicil  of  both 
or  either  of  the  parties,  and  yet  is  permitted  by  the  laws  of  the  place 
of  celebration,  for  we  are  concerned  in  this  case  only  with  the  ques- 
tion of  a  disability  imposed  by  foreign  law  upon  one  of  tte  parties 
to  the  marriage  in  respect  only  of  want  of  parental  consent,  and 
compliance  with  certain  formalities  required  by  such  foreign  law. 

There  appears  to  be  no  case  in  this  country  (certainly  no  case  was 
cited  to  us  in  argument  on  this  appeal)  in  which  in  such  a  case  as 
last  mentioned  the  view  has  been  expressed  that  such  a  marriage  would 

1  Story  on  the  Conflict  of  Laws. 


Ch.    3)  FAMILY  LAW.  517 

be  held  invalid  in  this  country.  We  know  of  no  principle  recognized 
by  English  law  which  would  justify  the  court  in  coming  to  the  con- 
clusion that  such  a  marriage  ought  to  be  held  invalid;  for,  although 
to  a  certain  extent  the  lex  domicilii  is  recognized  in  this  country, 
for  insTahce,  in  the  familiar  case  where  it  is  held  that  mobilia  sequ- 
untur  personam,  yet  such  recognition  appears  never  to  have  been  ex- 
tended to  the  case  of  a  matrimonial  engagement  entered  into  in  this 
country~^tween  an  inhabitant  of  another  country  and  an  inhabitant 
of  this  country.  In  such  a  case,  where  there  are  two  different  sys- 
tems of  law,  one  may  well  ask,  which  is  to  prevail  ?  Why  should  it 
be  recognized  that  a  person  who  comes  over  to  this  country  and  valid- 
ly enters  into  a  marriage  with  one  of  its  inhabitants  according  to 
English  law  should  be  held  unable  to  do  so  here  because  of  the  regu- 
lations of  a  foreign  system  of  jurisprudence  which  places  upon  him  a 
personal  incapacity  to  contract  unless  he  complies  with  formalities 
required  by  the  foreign  law?  It  may  be  observed  here  that  the  3rd 
section  of  article  1  of  the  French  Civil  Code  ordains  that  the  French 
laws  relating  to  the  conditions  and  privileges  of  persons  are  to  govern 
Frenchman  although  residing  in  a  foreign  country,  so  that  it  would 
seem  from  this  provision  that  the  French  rule  as  to  competency  by 
reason  of  minority  is  not  based  upon  domicil,  but  upon  nationality, 
and  therefore  that  even  m  the  case  of  a  Frenchman  domiciled  in  Eng- 
land celebrating"  a'  marriage  with  a  domiciled  Englishwoman  the 
French  courts  would  be  at  liberty,  if  the  question  arose  before  them, 
to  declare  such  a  marriage  null  and  void,  on  the  ground  that  it  was 
governed  by  the  laws  of  France,  although  celebrated  in  this  country; 
but  it  could  hardly  be  contended  in  England,  if  both  persons  parties 
to  a  marriage  were  domiciled  in  this  country,  that  our  courts  ought  to 
hold  suchTa  marriage, invalid  because  one  of  the  parties  by  the  laws 
of  his  or  her  nationality  may  not  have  adequate  competency  to  enter 
into  the  contract. 

[The  learned  justice  here  examined  the  following  cases :  Herbert 
V.  Herbert,  1819,  3  Phill.  58 ;  Scrimshire  v.  Scrimshire,  2  Hagg.  Cons. 
395;  Brook  v.  Brook,  9  H.  L.  C.  193  (1861)  ;  DeWilton  v.  Monte- 
fiore,  (1900)  2  Ch.  481;  Commonwealth  v.  Lane,  113  Mass.  458,  18 
Am.  Rep.  509  (1873);  Simonin  v.  Mallac,  2  Sw.  &  Tr.  67  (1860); 
and  continued  as  follows:] 

The  case  principally  relied  on  by  the  appellant  was  the  case  of  Sot- 
tomayor  v.  De  Barros  (2  P.  D.  81 ;  3  P.  D.  1)  before  Sir  Robert  Phil- 
limore,  and  afterwards  on  appeal  before  the  Court  of  Appeal,  where 
the  petitioner  and  respondent,  Portuguese  subjects  and  first  cousins, 
came  to  reside  in  England  in  1858.  In  1866  they  went  through  a  form 
of  marriage  before  the  registrar  of  the  district  of  the  city  of  London, 
and  in  1873  they  returned  to  Portugal,  and  continued  to  reside  there. 
By  the  law  of  Portugal  a  marriage  of  Portuguese  subjects,  being  first 
cousins,  without  dispensation,  wheresoever  contracted,  is  invalid.  The 
wife  afterwards,  while  residing  with  her  parents  at  Lisbon,  filed  a 


518  PARTICULAR  SUBJECTS.  (Part  2 

petition  in  this  country  for  a  declaration  of  nullity  of  marriage.  The 
respondent  appeared,  but  did  not  file  an  answer,  and  the  matter  came 
on  unopposed  before  Sir  Robert  Phillimore,  who  directed  that  the 
papers  should  be  sent  to  the  queen's  proctor,  in  order  that  he  might 
argue  the  questions  raised,  and  the  queen's  proctor  thereupon  appear- 
ed. The  questions  were  argued,  and  in  the  result  Sir  Robert  Philli- 
more felt  himself  bound  by  prior  decisions,  and  especially  that  in  Sim- 
onin  V.  Mallac,  2  Sw.  &  Tr.  67,  and  dismissed  the  petition. 

The  petitioner  appealed  to  the  Court  of  Appeal.  The  judgment 
of  the  court,  consisting  of  James,  Baggallay,  and  Cotton  L.  JJ.,  was 
delivered  by  Cotton  L.  J.,  and  one  of  the  principal  arguments  ad- 
dressed to  us  upon  this  appeal  was  based  upon  that  judgment.  The 
decision  of  the  court  below  was  reversed.  The  basis  of  that  judgment 
is  to  be  found  in  the  following  sentence  at  page  5  of  the  report :  "But 
it  is  a  well-recognized  principle  of  law  that  the  question  of  personal 
capacity  to  enter  into  any  contract  is  to  be  decided  by  the  law  of  domi- 
cil.  It  is,  however,  urged  that  this  does  not  apply  to  the  contract  of 
marriage,  and  that  a  marriage  valid  according  to  the  law  of  the  coun- 
try whei"e  it  is  solemnized  is  valid  everywhere.  This,  in  ouf  opinion, 
is  not  a  correct  statement  of  the  law.  The  law  of  a  country  where 
a  marriage  is  solemnized  must  alone  decide  all  questions  relating  to 
the  validity  of  the  ceremony  by  which  the  marriage  is  alleged  to  have 
been  constituted;  but,  as  in  other  contracts,  so  in  that  of  marriage, 
personal  capacity  must  depend  on  the  law  of  domicil;  and  if  the  laws 
of  any  country  prohibit  its  subjects  within  certain  degrees  of  con- 
sanguinity from  contracting  marriage,  and  stamp  a  marriage  between 
persons  within  the  prohibited  degrees  as  incestuous,  this,  in  our  opin- 
ion, imposes  on  the  subjects  of  that  country  a  personal  incapacity, 
which  continues  to  afifect  them  so  long  as  they  are  domiciled  in  the 
country  where  this  law  prevails,  and  renders  invalid  a  marriage 
between  persons  both  at  the  time  of  their  marriage  subjects  of  and 
domiciled  in  the  country  which  imposes  this  restriction,  wherever  such 
marriage  may  have  been  solemnized." 

Now  this  court  hearing  this  appeal  is  bound  by  the  decision  of 
the  Court  of  Appeal  in  this  case  of  Sottomayor  v.  De  Barros,  2  P.  D. 
81 ;  3  P.  D.  1.  It  is  not  necessary,  even  if  we  were  at  liberty  to  do 
so,  to  consider  whether  that  case  was  rightly  decided,  but  it  is  permis- 
sible to  point  out  that  the  commencement  of  the  paragraph  above  set 
out  could  scarcely  be  considered  correct  in  stating  that  "it  is  a  well- 
recognized  principle  of  law  that  the  question  of  personal  capacity 
to  enter  into  any  contract  is  to  be  decided  by  the  law  of  domicil," 
for,  if  so,  it  would  logically  seem  to  follow  that  that  part  of  the  judg- 
ment which  indicates  that  the  opinion  of  the  court  was  confined  to 
cases  where  both  the  contracting  parties  were,  at  the  time  of  their 
marriage,  domiciled  in  a  country,  the  laws  of  which  prohibited  their 
marriage,  should  not  have  expressed  that  limitation,  and  that  the  case 
of  Simonin  v.  Mallac,  2  Sw.  &  Tr.  67,  should  have  been  overruled,  and 


Ch.    3)  FAMILY   LAW.  519 

yet  that  case,  according  to  our  reading  of  the  judgment,  is  approved. 
The  probabiHty  is  that  that  sentence  should  be  read  with  the  context, 
and  be  confined  to  the  case  present  to  the  minds  of  the  court  in  re- 
lation to  marriages  which  could  not  be  contracted  at  all  by  the  laws  of, 
the  country  of  domicil.  Even  then  it  may  be  questioned  whether  that 
sentence  is  correct,  and  whether  the  question  of  capacity  is  really 
raised  at  all  in  such  a  case;  that  is  to  say,  where  both  the  parties  are 
capable  of  entering  into  a  marriage  but  may  not  marry  each  other 
because  such  a  marriage  would  be  illegal  in  their  own  country.  That 
is  rather  a  question  of  illegality  than  of  capacity,  and  it  may,  per- 
haps, not  be  unreasonable  for  one  country  to  refuse  to  recognize  a 
marriage  contracted  in  it  between  two  persons  by  the  laws  of  whose 
domicil  a  marriage  between  them  is  illegal,  and  yet  it  may  be  quite 
proper  and  reasonable  for  a  country,  in  which  a  marriage  takes  place 
between  persons  domiciled  in  another  country,  to  recognize  it  as  a 
valid  marriage  when  it  would  be  legal  in  such  other  country  if  con- 
tracted after  compliance  with  all  formalities  required  in  such  other 
country,  and,  further,  to  protect  its  citizens  in  all  cases  of  marriages 
where  one  of  the  contracting  parties  is  domiciled  in  the  country  first 
referred  to — that  is  to  say,  where  the  marriage  takes  place — and  the 
other  is  domiciled  in  a  foreign  country,  and  there  is  a  conflict  between 
the  laws  of  the  two  countries  as  to  the  validity  of  the  marriage.  The 
passage  in  the  judgment  expressly  confining  the  decision  to  the  case 
then  before  the  court  is  as  follows :  "It  was  pressed  upon  us  in  argu- 
ment that  a  decision  in  favor  of  the  petitioner  would  lead  to  many 
difficulties  if  questions  should  arise  as  to  the  validity  of  a  marriage 
between  an  English  subject  and  a  foreigner  in  consequence  of  prohibi- 
tions imposed  by  the  law  of  the  domicil  of  the  latter.  Our  opinion 
on  this  appeal  is  confined  to  the  case  where  both  the  contracting  par- 
ties Bfe,-at  the  time  of  their  marriage,  domiciled  in  a  country  the  laws 
of  which  prohibit  their  marriage.  All  persons  are  legally  bound  to 
take  notice  of  the  laws  of  the  country  wdiere  they  are  domiciled.  No 
country  is  bound  to  recognize  the  laws  of  a  foreign  state  when  they 
work  injustice  to  its  own  subjects,  and  this  principle  would  prevent 
the  judgment  in  the  present  case  being  relied  on  as  an  authority  for  set- 
ting aside  a  marriage  between  a  foreigner  and  an  English  subject 
domiciled  in  England  on  the  ground  of  any  personal  incapacity  not 
recognized  by  the  law  of  this  country." 

It  was  upon  this  passage  that,  when  the  case  subsequently  came 
before  Lord  Hannen,  he  was  able  to  decide  in  favor  of  the  marriage 
being  valid  notwithstanding  the  fact  that  one  of  the  parties  was  domi- 
ciled in  Portugal. 

The  concluding  passage  in  the  judgment  of  the  Court  of  Appeal  is 
as  follows :  "It  only  remains  to  consider  the  case  of  Simonin  v.  Mallac, 
2  Sw.  &  Tr.  67.  The  objection  to  the  validity  of  the  marriage  in  that 
case,  which  was  solemnized  in  England,  was  the  want  of  consent  of 
parents,  required  by  the  laAV  of  France,  but  not  under  the  circumstances 


520  PARTICULAR  SUBJECTS.  (Part  2 

by  that  of  this  country.  In  our  opinion  this  consent  must  be  consider- 
ed a  part  of  the  ceremony  of  marriage,  and  not  a  matter  affecting 
the  personal  capacity  of  the  parties  to  contract  marriage,  and  the  de- 
■  cision  in  Simonin  v.  Mallac,  2  Sw.  &  Tr.  67,  does  not,  we  think,  govern 
the  present  case." 

That  may  perhaps  be  considered  only  a  dictum  by  the  learned  Lords 
Justices, 'but  it  is  really  a  very  strong  statement  that  Simonin  v.  Mal- 
lac, 2  Sw,  &  Tr.  67,  is  clearly  distinguishable  from  the  case  before 
them,  and  we  regard  it  as  an  approval  of  the  decision  in  that  case, 
and,  if  so,  it  is  an  authority  adverse  to  the  contention  of  the  appellant 
on  the  present  appeal.  The  case  having  been  thus  argued  in  the  Court 
of  Appeal  by  the  queen's  proctor,  under  the  provisions  of  section  5  of 
the  Matrimonial  Causes  Act,  1860,  was  remit<"ed  to  the  Probate  Divi- 
sion in  order  that  the  question  of  fact  raised  by  the  queen's  proctor's 
plea  should  be  considered.  It  was  then  heard  before  Lord  Hannen, 
who  found,  as  a  fact,  that  the  respondent,  the  husband,  was  domiciled 
in  England,  but  that  the  domicil  of  the  petitioner  was  Portuguese. 

In  the  course  of  his  judgment  he  pointed  out  how  the  passage  in 
the  judgment  of  the  Court  of  Appeal  expressly  confining  the  decision 
to  the  case  then  before  the  court  left  him  free  to  consider  whether 
the  marriage  of  the  respondent,  who  was  domiciled  in  England,  with  a 
woman  subject  by  the  law  of  her  domicil  to  a  personal  incapacity  not 
recognized  by  English  law,  must  be  declared  invalid  by  the  tribunals 
of  this  country,  and  he  commented  (5  P.  D.  at  p.  100)  upon  the  passage 
in  the  judgment  which  formed  the  basis  of  the  decision,  and  remarked 
that  it  appeared  to  him  to  put  forward  a  novel  principle  for  which, 
up  to  the  present  time,  there  had  been  no  English  authority.  He  then 
cited  the  case  of  Male  v.  Roberts,  (1799)  3  Esp.  163,  in  which  the 
contract  upon  which  the  defendant  was  sued  was  made  in  Scotland, 
the  defence  being  that  the  defendant  was  an  infant,  and  where  Lord 
Eldon  held  the  defence  bad,  saying,  "If  the  law  of  Scotland  is  that 
such  a  contract  as  the  present  could  not  be  enforced  against  an  infant, 
that  should  have  been  given  as  evidence.  The  law  of  the  country 
where  the  contract  arose  must  govern  the  contract ;  "  and  after  refer- 
ring to  the  cases  of  Scrimshire  v.  Scrimshire,  2  Hagg.  Cons.  395,  and 
Simonin  v.  Mallac,  2  Sw.  &  Tr.  67,  and  other  cases,  he  held  that  the 
marriage  between  the  petitioner  and  respondent  was  valid,  and  dis- 
missed the  petition. 

It  appears  to  have  been  suggested  that  the  papal  dispensation  of 
which  the  law  of  Portugal  recognizes  the  validity  could  not  be  dis- 
tinguished in  principle  from  the  consent  of  a  parent ;  but  Cotton  L.  J. 
stated  in  his  judgment  that  it  could  not,  in  the  opinion  of  the  court, 
be  held  that  such  a  dispensation  is  a  matter  of  form  affecting  only  the 
sufficiency  of  the  ceremony  by  which  the  marriage  was  effected.  Mr. 
Foote's  remarks  upon  this  question  in  his  book  on  Private  International 
Jurisprudence  (3d  Ed.)  p.  367,  are  much  in  point:  "Dispensation  with 
a  law  is,  in  principle,  a  very  different  thing  from  compliance  with  its 


Ch.    3)  FAMILY  LAW.  521 

directions,  though  in  practice  the  effect  of  the  two  may  sometimes  be 
similar.  In  such  a  case  as  Sottomayor  v.  De  Barros,  2  P.  D.  81 ;  3  P. 
D.  1,  the  law  of  Portugal  does  not  say  that,  when  first  cousins  wish 
to  intermarry,  they  shall  obtain  the  written  consent  of  the  Pope  to 
their  doing  so.  It  says  they  shall  not  marry  at  all,  and  such  a  pro- 
hibition by  a  domiciliary  law  is  not  the  less  complete,  as  far  as  other 
tribunals  are  concerned,  because  the  same  domiciliary  law,  under  cer- 
tain circumstances,  allows  itself  to  be  dispensed  with." 

The  last  case  in  which  the  case  of  Simonin  v.  Mallac,  2  Sw.  &  Tr. 
67,  has  been  referred  to  was  the  case  of  Hay  v.  Northcote,  (1900) 
2  Ch.  262,  in  which  Farwell,  L.  J.  (then  Farwell  J.),  followed  that 


case. 


*     *     * 


After  very  careful  consideration  of  the  present  case  we  have  come 
to  the  conclusion  that  the  first  point  must  be  decided  against  the  ap- 
pellant, and  that  the  marriage  between  her  and  Leon  Philip  must  be 
declared  validJu^England. 

[In~regard  to  the  second  point  it  was  held  that  the  decree  of  the 
French  court  declaring  the  marriage  to  be  null  according  to  articles  148 
and  170  of  the  French  Civ.  Code  would  not  be  recognized  in  England.]  . 

Appeal  dismissed.*  ji^ 

COMMONWEALTH  v.  LANE.  <M*-       ,  ^^^  ^fi 

(Supreme  Judicial  Court  of  Massachusetts,  1873.     113  Mass.  458,  18  Am.  qJ      ^^ 

Kep.5«,.,  1>^<^ 

Gray,  C.  J.^    The  report  finds  that  the  defendant  was  lawfully  mar-     -   ««•  t^*^ 
ried  to  his  first  wife  in  this  Commonwealth;    that  she  obtained  a  di- 
vorce here  from  the  bond  of  matrimony,  for  his  adultery ;  that  he  was 
afterwards,  while  still  a  resident  of  this  Commonwealth,  married  to  "^     i^f*^  •  L* 
a  second  wife  in  the  State  of  New  Hampshire,  and  cohabited  with  her      i^^    A^Y^O 
in  this  Commonwealth,  the  first  wife  being  still  alive;    and  the  ques-       ^f^       j^ 
tion  is  whether  he  is  indictable  for  polygamy,  under  the  Gen.  St.  1860,  ^^      Am 
c.  165,  §  4.  _  Lf^       l^ 

It  is  provided  by  our  statutes  of  divorce  that,  in  cases  of  divorce    ^/j/^'^^  Q 
from  the  bond  of  matrimony,  the  innocent  party  may  marry  again  as  /yA/^      ^.  . 
if  the  other  party  were  dead ;    but  that  any  marriage  contracted  by  W*^^ 

the  guilty  party  during  the  life  of  the  other,  without  having  obtained    ^^  ,j 

8As  to  essentials  of  marriage,  consult  Foote,  Priv.  Int.   Jurispr.  360-370 ;  ^^  '" 

Westlake,  Priv.  Int.  Law,  58-61.     Formerly  tlie  lex  loci  governed.     Dalrymple     /   ^  1^  ^^ 
V.  Dalrymple,  2  Hagg.  Cons.  54  (1811).  VT^  ^^TjJi    ' 

On  the  continent  the  consent  of  parents  is  deemed  to  relate  to  the  essentials  »        'ijX'^ 
of  a  marriage  and  not  to  its  form.     France,  App.  Besangon,  Jan.  4,  1888  (D.       //vr^ 
1889,  2,  69).     Germany,  A.  G.  Celle,  Jan.  15,  1870  (24   Seuffert's  Archlv.  1).  (jJ  ^ 
Italy,  App.  Florence,  Aug.  7,  1907  (La   Legge  1907,  2230). 

9  The  statement  of  facts  and  a  part  of  the  opinion  have  been  omitted. 


i:^>A 


522  PARTICULAR  SUBJECTS.  (Part  2 

leave  from  this  court  to  marry  again,  shall  be  void,  and  such  party  • 
shall  be  adjudged  guilty  of  polygamy.     Gen.  St.  c.  107,  §§  25,  2C. 
St.  1864,  p.  279,  c.  216. 

The  marriage  act,  Gen.  St.  c.  106,  specifies,  in  sections  1-3,  what 
marriages  shall  be  void  by  reason  of  consanguinity  or  affinity ;  in  sec- 
tion 4,  that  all  marriages  contracted  while  either  of  the  parties  has  a 
former  wife  or  husband  living,  except  as  provided  in  chapter  107, 
shall  be  void;  in  section  5,  that  no  insane  person  or  idiot  shall  be 
capable  of  contracting  marriage;  and  in  section  6  as  follows:  "When 
persons  resident  in  this  state,  in  order  to  evade  the  preceding  provi- 
sions, and  with  an  intention  of  returning  to  reside  in  this  state,  go 
into  another  state  or  country,  and  there  have  their  marriage  solemniz- 
ed, and  afterwards  return  and  reside  here,  the  marriage  shall  be  deem- 
ed void  in  this  state." 

All  these  sections,  except  the  last,  are  manifestly  directed  and  limited 
to  marriages  within  the  jurisdiction  of  this  Commonwealth;  and  the 
last  has  no  application  to  this  case,  because  it  does  not  appear  to  have 
been  proved  or  suggested  at  the  trial  that  the  parties  to  the  second 
marriage  went  out  of  this  state  to  evade  our  laws,  or  even  that  the 
second  wife  had  resided  in  this  state  or  knew  of  the  previous  marriage 
and  divorce. 

By  the  Gen.  St.  c.  165,  §  4,  "whoever,  having  a  former  husband  or 
wife  living,  marries  another  person,  or  continues  to  cohabit  with  such 
second  husband  or  wife  in  this  state,"  shall  (except  when  the  first 
husband  or  wife  has  for  sever!  years  been  absent  and  not  known  to  the 
other  party  to  be  living,  or  in  case  of  a  person  legally  divorced  from 
the  bonds  of  matrimony  and  not  the  guilty  cause  of  such  divorce)  be 
deemed  guilty  of  polygamy  and  punished  accordingly. 

This  statute  is  not  intended  to  make  any  marriages  unlawful  which 
are  not  declared  to  be  unlawful  by  other  statutes,  nor  to  punish  co- 
habitation under  a  lawful  marriage.  Its  object  is  to  prohibit  unlawful 
second  marriages,  whether  the  parties  are  actually  married  in  this 
Commonwealth,  or  continue  after  being  married  elsewhere  to  co- 
habit here.  But  in  either  alternative,  in  order  to  sustain  the  indictment, 
the  second  marriage  must  be  unlawful.  It  is  not  enough  that  the  mar- 
riage is  such  as  would  be  unlawful  if  contracted  in  this  Common- 
wealth ;  it  must  be  a  marriage  which,  being  contracted  where  it  was, 
is  unlawful  here. 

The  marriage  in  New  Hampshire  is  stated  in  the  report  to  have 
been  "according  to  the  forms  of  law ;"  and  it  appears  by  the  statutes 
of  New  Hampshire,  therein  referred  to,  that  the  only  provision  re- 
lating to  the  invalidity  of  marriages  on  account  of  the  incompetency  of 
parties  to  contract  them  is  as  follows :  "All  marriages  prohibited  by  law, 
on  account  of  the  consangunity  or  affinity  of  the  parties,  or  where  either 
has  a  former  wife  or  husband  living,  knowing  such  wife  or  husband 
to  be  alive,  if  solemnized  in  this  state,  shall  be  absolutely  void  without 
any  decree  of  divorce  or  other  legal  process."     Gen.  St.  N.  H.  1867, 


Ch.    3)  FAMILY  LAW.  523 

c.  163,  §  1.  That  provision  clearly  does  not  extend  to  a  case  in  which 
the  former  wife,  having  obtained  a  divorce  from  the  bond  of  matri- 
mony, was  absolutely  freed  from  all  obligation  to  the  husband,  and  in 
which,  as  observed  by  Mr.  Justice  Wilde,  in  a  like  case,  "notwith- 
standing the  restraints  imposed  on  the  husband,  he  being  the  guilty 
cause  of  the  divorce,  the  dissolution  of  the  marriage  contract  was  to- 
tal, and  not  partial."  Commonwealth  v.  Putnam,  1  Pick.  136,  139.^** 
The  marriage  in  New  Hampshire  must  therefore  be  taken  to  have  been 
valid  T5}^the  law  of  that  state. 

The  question  presented  by  the  report  is  therefore  reduced  to  this: 
If  a  man  who  has  been  lawfully  married  in  this  Commonwealth,  and 
whose  wifehas  obtained  a  divorce  a  vinculo  here  because  of  his  adul- 
tery,  so  that  he  is  prohibited  by  our  statutes  from  marrying  again 
without  leave  of  this  court,  is  married,  without  having  obtained  leave 
of  the  court,  and  being  still  a  resident  of  this  Commonwealth,  to  an- 
other woman  in  another  state,  according  to  its  laws,  and  afterwards 
cohabits  with  her  in  this  Commonwealth,  is  his  second  marriage  valid 
here? 

The  determination  of  this  question  depends  primarily  upon  the 
construction  of  our  statutes,  but  ultimately  upon  fundamental  princi- 
ples of  jurisprudence,  which  have  been  clearly  declared  by  the  judg- 
ments of  our  predecessors  in  this  court,  and  in  the  light  of  which  those 
statutes  must  be  read  in  order  to  ascertain  their  just  extent  and  efifect. 

What  marriages  between  our  own  citizens  shall  be  recognized  as 
valid  in  this  Commonwealth  is  a  subject  within  the  power  of  the  Legis- 
lature to  regulate.  But  when  the  statutes  are  silent,  questions  of  the 
validity  of  marriages  are  to  be  determined  by  the  jus  gentium,  the 
common  law  of  nations,  the  law  of  nature  as  generally  recognized  by 
all  civilized  peoples. 

By  that  law,  the  validity  of  a  marriage  depends  upon  the  question 
whether  it  was  valid  where  it  was  contracted ;  if  valid  there,  it  is  valid 
everywhere. 

The  only  exceptions  admitted  by  our  law  to  that  general  rule  are 
of  two  classes :  1st.  Marriages  which  are  deemed  contrary  to  the 
law  of  nature  as  generally  recognized  in  Christian  countries;  2d.  Mar- 
riages which  the  Legislature  of  the  Commonwealth  has  declared  shall 
not  be  allowed  any  validity,  because  contrary  to  the  policy  of  our  own 
laws. 

The  first  class  includes  only  those  void  for  polygamy  or  for  incest. 
To  bring  it  within  the  exception  on  account  of  polygamy,  one  of  the 
parties  must  have  another  husband  or  wife  living.  To  bring  it  within 
the  exception  on  the  ground  of  incest,  there  must  be  such  a  relation 
between  the  parties  contracting  as  to  make  the  marriage  incestuous 

10  Contra,  if  the  decree  of  divorce  itself  remains  incomplete  at  the  time 
of  the  marriage.  Warter  v.  Warter.  L.  R.  15  P.  D.  152  (1890) ;  McLennan 
V.  McLennan.  31  Or.  480,  50  Pac.  802,  38  L.  R.  A.  863,  65  Am.  St  Rep.  835 
(1897).     But  see  State  v.  Feun,  47  Wash.  561,  92  Pac.  417  (1907). 


524  PARTICULAR  SUBJECTS.  (Part  2 

according  to  the  general  opinion  of  Christendom;  and,  by  that  test, 
the  prohibited  degrees  include,  beside  persons  in  the  direct  line  of  con- 
sanguinity, brothers  and  sisters  only,  and  no  other  collateral  kindred. 
Wightman  v.  Wightman,  4  Johns.  Ch.  (N.  Y.)  343,  349-351.  3 
Kent  Com.  83.  Story  Confl.  §  114.  Sutton  v.  Warren,  10  Mete.  451. 
Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193.  Bowers  v.  Bowers,  10 
Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec.  99.^^ 

A  marriage  abroad  between  persons  more  remotely  related,  not 
absolutely  void  by  the  law  of  the  country  where  it  was  celebrated,  is 
valid  here,  at  least  until  avoided  by  a  suit  instituted  for  the  purpose, 
even  if  it  might  have  been  so  avoided  in  that  country;  and  this  is  so, 
whether  the  relationship  between  the  parties  is  one  which  would  not 
make  the  marriage  void  if  contracted  in  this  Commonwealth,  as  in 
the  case  of  a  marriage  between  a  widower  and  his  deceased  wife's 
sister,  or  one  which  would  invalidate  a  marriage  contracted  here,  as 
in  the  case  of  a  marriage  between  aunt  and  nephew. 

In  Greenwood  v.  Curtis,  6  Mass.  358,  378,  379,  4  Am.  Dec.  145, 
Chief  Justice  Parsons  said:  "If  a  foreign  state  allows  of  marriages 
incestuous  by  the  law  of  nature,  as  between  parent  and  child,  such 
marriage  could  not  be  allowed  to  have  any  validity  here.  But  mar- 
riages not  naturally  unlawful,  but  prohibited  by  the  law  of  one  state, 
and  not  of  another,  if  celebrated  where  they  are  not  prohibited,  would 
be  holden  valid  in  a  state  where  they  are  not  allowed.  As  in  this  state 
a  marriage  between  a  man  and  his  deceased  wife's  sister  is  lawful, 
but  it  is  not  so  in  some  states ;  such  a  marriage  celebrated  here  would 
be  held  valid  in  any  other  state,  and  the  parties  entitled  to  the  benefits 
of  the  matrimonial  contract."  This  distinction  was  approved  by  Chan- 
cellor Kent  and  by  Judge  Story.  2  Kent  Com.  85,  note  a.  Story  Confl. 
§  116. 

In  The  Queen  v.  Wye,  7  A.  &  E.  761,  771 ;  s.  c.  3  N.  &  P.  6,  13, 
14 ;  it  was  decided  that  the  marriage  of  a  man  with  his  mother's  sister 
in  England  before  the  St.  of  5  &  6  Will.  IV.  c.  54,  though  voidable  by 
process  in  the  ecclesiastical  courts,  was,  until  so  avoided,  valid  for  all 
civil  purposes,  including  legitimacy  and  settlement.  In  accordance 
with  that  decision,  it  was  held  in  Sutton  v.  Warren,  10  Mete.  451, 
that  such  a  marriage  contracted  in  England,  and  never  avoided  there, 
must,  upon  the  subsequent  removal  of  the  parties  to  Massachusetts, 
and  the  question  arising  collaterally  in  an  action  at  common  law,  be 
deemed  valid  here,  although,  if  contracted  in  this  Commonwealth,  it 
would  have  been  absolutely  void. 

A  marriage  which  is  prohibited  here  by  statute,  because  contrary  to 
the  policy  of  our  laws,  is  yet  valid  if  celebrated  elsewhere  according  to 
the  law  of  the  place  even  if  the  parties  are  citizens  and  residents  of 
this  Commonwealth,  and  have  gone  abroad  for  the  purpose  of  evading 
our  laws,  unless  the  Legislature  has  clearly  enacted  that  such  mar- 

11  But  see  U.  S.  v.  Rodgers  (D.  C.)  109  Fed.  886  (1901). 


Ch.    3)  FAMILY  LAW.  525 

riages  out  of  the  state  shall  have  no  validity  here.     This  has  been 
repeatedly  affirmed  by  well  considered  decisions. 

For  example,  while  the  statutes  of  Massachusetts  prohibited  mar- 
riages between  white  persons  and  negroes  or  mulattoes,  a  mulatto  and 
a  white  woman,  inhabitants  of  Massachusetts,  went  into  Rhode  Island, 
and  were  there  married  according  to  its  laws,  and  immediately  re- 
turned into  Massachusetts;  and  it  was  ruled  by  Mr.  Justice  Wilde 
at  the  trial,  and  affirmed  by  the  whole  court,  that  the  marriage,  even 
if  the  parties  went  into  Rhode  Island  to  evade  our  laws,  yet,  being 
good  and  valid  there,  must  upon  general  principles  be  so  considered 
here,  and  that  the  wife  therefore  took  the  settlement  of  her  husband 
in  this  Commonwealth.  Medway  v.  Needham,  16  Mass.  157,  8  Am. 
Dec.  131.12 

So  it  has  been  held  that  a  man,  from  whom  his  wife  had  obtained 
in  this  state  a  divorce  a  vinculo  for  his  adultery,  which  by  our  stat- 
utes disabled  him  from  contracting  another  marriage,  might  lawfully 
marry  again  in  another  state  according  to  its  laws;  that  the  children 
of  such  marriage  took  the  settlement  of  their  father  in  this  Common- 
wealth; and  that  the  new  wife  was  entitled  to  dower  in  his  lands 
here,  even  if  the  wife  as  well  as  the  husband  was  domiciled  here,  and 
knew  of  the  previous  divorce  and  its  cause,  and  went  into  the  other 
state  to  evade  our  laws — so  long  as  our  statutes  did  not  declare  a  mar- 
riage contracted  there  with  such  intent  to  be  void  here.  West  Cam- 
bridge V.  Lexington,  1  Pick.  506,  11  Am.  Dec.  231.  Putnam  v.  Put- 
nam, 8  Pick.  433.  See  also  Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110, 
24  Am.  Dec.  444;  Ponsford  v.  Johnson,  2  Blatchf.  C.  C.  51,  Fed. 
Cas.  No.  11,266;  2  Kent.  Com.  91-93. 

The  principles  upon  which  these  decisions  proceeded  were  recogniz- 
ed in  all  the  English  cases  decided  before  the  American  Revolution, 
although  it  is  true,  as  has  since  been  pointed  out,  that  the  particular 
question  in  each  of  them  related  rather  to  the  forms  required  than  to 
the  capacity  of  the  parties.     *     *     * 

In  a  recent  case  in  the  House  of  Lords,  the  cases  of  Medway  v. 
Needham,  16  Mass.  157,  8  Am.  Dec.  131,  and  Sutton  v.  Warren,  10 
Mete.  451,  above  cited,  have  been  severely  criticized,  and  pointedly  de- 
nied to  be  law.  Brook  v.  Brook,  9  H.  L.  Cas.  193 ;  s.  c.  3  Sm.  & 
Giff.  481.     *     *     * 

In  Brook  v.  Brook,  ubi  supra,  a  widower  and  the  sister  of  his  de- 
ceased wife,  being  lawfully  domiciled  in  England,  while  on  a  tempo- 
rary visit  to  Denmark,  had  a  marriage  solemnized  between  them,  which 
was  by  the  laws  of  Denmark  lawful  and  valid  to  all  intents  and  pur- 
poses whatsoever.  In  a  suit  in  eqvuty,  brought  after  the  death  of 
both  parties  to  ascertain  the  rights  of  the  children  in  their  father's 
property,  the  House  of  Lords,  in  accordance  with  the  opinions  of 

12  Contra,  on  the  ground  of  public  policy,  Kinney  v.  Commonwealth,  30  Grat. 
(Va.)  858,  32  Am.  Rep.  GOO  (1878). 


526  PARTICULAR  SUBJECTS.  (Part   2 

Lords  Campbell,  Cranworth,  St.  Leonards  and  Wensleydale,  and  af- 
firming a  decree  rendered  by  Vice  Chancellor  Stuart,  assisted  by  Mr. 
Justice  Cresswell,  held  that  the  marriage  in  Denmark  was  wholly  void 
by  the  St.  of  Will.  IV.,^^  and  that  the  children  of  that  marriage  were 
bastards. 

The  decision  was  put,  by  the  learned  judges  who  concurred  in  it, 
upon  three  different  grounds. 

The  first  ground  was  that  the  St.  of  Will.  IV.  disqualified  English 
subjects  everywhere  from  contracting  such  a  marriage.  This  ground 
was  taken  in  the  court  below,  and  by  Lord  St.  Leonards  in  the  House 
of  Lords.  3  Sm.  &  Gifif.  522,  525.  9  H.  L.  Cas.  234-238.  But  it  was 
expressly  disclaimed  by  Lord  Campbell,  Lord  Cranworth  and  Lord 
Wensleydale,  the  two  former  of  whom  expressed  opinions  that  the 
statute  did  not  extend  to  all  the  colonies,  and  all  three  declared  that 
they  did  not  think  its  purpose  was  to  put  an  end  to  such  marriages 
by  British  subjects  throughout  the  world.    9  H.  L.  Cas,  214,  222,  240. 

The  second  ground,  which  was  suggested  by  Mr.  Justice  Cresswell 
and  Lord  Wensleydale  only,  and  is  opposed  to  all  the  American  au- 
thorities, was  that  the  case  justly  fell  within  the  first  exception,  stated 
in  Story  Confl.  §  114,  of  marriages  involving  polygamy  and  incest.  3 
Sm.  &  Gifif.  513.  9  H.  L.  Cas.  241,  245.  In  view  of  that  position,  it 
may  be  observed  that  in  an  earlier  case,  in  which  Lord  Wensleydale 
himself  (then  Baron  Parke)  delivered  the  opinion,  a  marriage  of  a 
widower  with  his  deceased  wife's  sister,  before  the  St.  of  Will.  IV., 
was  prevented  from  being  made  irrevocable  by  that  statute,  only  by 
the  institution,  a  week  before  its  passage,  of  a  suit  for  nullity  in  the 
Ecclesiastical  Court  by  the  father  of  the  supposed  wife;  and  by  the 
decision  of  the  Privy  Council,  that  because,  if  the  marriage  was  not 
set  aside,  the  birth  of  a  child  of  the  marriage  would  impose, a  legal 
obligation  upon  the  grandfather  to  maintain  the  child  in  the  event  of 
its  being  poor,  lame  or  impotent,  and  unable  to  work,  he  had,  according 
to  the  rules  of  the  ecclesiastical  courts,  a  sufficient  interest,  "although 
of  an  extremely  minute  and  contingent  character,"  to  support  such  a 
suit.     Sherwood  v.  Ray,  1  Moore  P.  C.  353,  401,  402. 

The  third  ground,  upon  which  alone  all  the  law  lords  agreed,  was 
that  the  St.  of  Will.  IV.  made  all  future  marriages  of  this  kind  between 
English  subjects,  having  their  domicile  in  England,  absolutely  void, 
because  declared  by  act  of  Parliament  to  be  contrary  to  the  law  of  God, 
and  must  therefore  be  deemed  to  include  such  marriages,  although 
solemnized  out  of  the  British  dominions. 

The  law  of  England,  as  thus  declared  by  its  highest  legislative  and 
judicial  authorities,  is  certainly  presented  in  a  remarkable  aspect.  1st. 
Before  the  St.  of  Will.  IV.  marriages  within  the  prohibited  degrees  of 

13  St.  5  &  G  Will.  IV,  c.  54,  couimonly  known  as  "Lord  Lyndhurst's  Act," 
provided  that  marriages  between  persons  within  the  prohibited  degrees  of  af- 
finity, thereafter  celebrated,  should  be  absolutely  null  and  void. 


Ch.    3)  FAMILY  LAW.  527 

affinity,  if  not  avoided  by  a  direct  suit  for  the  purpose  during  the  hfe- 
time  of  both  parties,  had  the  same  effect  in  England,  in  every  respect, 
as  if  wholly  valid.  2d.  This  statute  itself  made  such  marriages,  al- 
ready solemnized  in  England,  irrevocably  valid  there,  if  no  suit  to 
annul  them  was  already  pending.  3d.  It  left  such  marriages  in  Eng- 
land, even  before  the  statute,  to  be  declared  illegal  in  the  Scotch 
courts,  at  least  so  far  as  rights  in  real  estate  in  Scotland  were  con- 
cerned. 4th.  According  to  the  opinion  of  the  majority  of  the  law 
lords,  it  did  not  invalidate  marriages  of  Enghsh  subjects  in  English 
colonies,  in  which  a  different  law  of  marriage  prevailed.  5th.  But  it 
did  make  future  marriages  of  this  kind,  contracted  either  in  England, 
or  in  a  foreign  country,  by  English  subjects  domiciled  in  England,  ab- 
solutely void,  because  declared  by  the  British  Parliament  to  be  con- 
trary to  the  law  of  God. 

The  judgment  proceeds  upon  the  ground  that  an  act  of  Parliament 
is  not  merely  an  ordinance  of  man,  but  a  conclusive  declaration  of 
the  law  of  God ;  and  the  result  is  that  the  law  of  God,  as  declared  by 
act  of  Parliament  and  expounded  by  the  House  of  Lords,  varies  ac- 
cording to  time,  place,  length  of  life  of  parties,  pecuniary  interests  of 
third  persons,  petitions  to  human  tribunals,  and  technical  rules  of 
statutory  construction  and  judicial  procedure. 

The  case  recalls  the  saying  of  Lord  Holt,  in  London  v.  Wood,  12 
Mod.  669,  687,  688,  that  "an  act  of  Parliament  can  do  no  wrong, 
though  it  may  do  several  things  that  look  pretty  odd ;"  and  illustrates 
the  effect  of  narrow  views  of  policy,  of  the  doctrine  of  the  "omnip- 
otence of  Parliament,"  and  of  the  consequent  unfamiliarity  with  ques- 
tions of  general  jurisprudence,  upon  judges  of  the  greatest  vigor  of 
mind,  and  of  the  profoundest  learning  in  the  municipal  law  and  in 
the  forms  and  usages  of  the  judicial  system  of  their  own  country. 

Such  a  decision,  upon  such  reasons,  from  any  tribunal,  however 
eminent,  can  have  no  weight  in  inducing  a  court,  "not  bound  by  it  as 
authority,  to  overrule  or  disregard  its  own  decisions. 

The  provision  of  the  Gen.  St.  c.  107,  §  25,  forbidding  the  guilty 
party  to  a  divorce  to  contract  another  marriage,  during  the  life  of  the 
other  party,  without  leave  of  this  court,  on  pain  of  being  adjudged 
guilty  of  polygamy,  does  not  create  a  permanent  incapacity,  like  one 
arising  from  consanguinity  or  affinity.  It  is  rather  in  the  nature  of 
the  imposition  of  a  penalty,  to  which  it  would  be  difficult  to  "giVe^n 
extra-territorial  operation.  West  Cambridge  v.  Lexington,  1  Pick. 
506,  510,  512,  11  Am.  Dec.  231.  Clark  v.  Clark,  8  Cush.  385,  386. 
Upon  the  principles  and  authorities  stated  in  the  earlier  part  of  this 
opinion  it  certainly  cannot  invalidate  a  subsequent  marriage  in  another 
state  according lo'itsriaws,  at  least  without  proof  that  the  parties  went 
into  that  state  and  were  married  there  with  the  intent  to  evade  the 
provisions  of  the  statutes  of  this  Commonwealth.  No  such  intent  being 
shown  in  this  case,  we  need  not  consider  its  eft"ect,   if  proved,  nor 


528 


PARTICULAR  SUBJECTS. 


(Part  3 


whether  the  indictment  is  in  due  form.     See  Commonwealth  v.  Put- 
nam, 1  Pick.  136,  139 ;   Commonwealth  v.  Hunt,  4  Cush.  49. 
New  trial  ordered.^* 


NNEGAR  V.  STATE. 

(Supreme  Court  of  Tennessee,  1889.    87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A. 
703,  10  Am.  St  Rep.  048.) 

FoLKES,  J.  The  defendants  were  indicted  for  lewdness,  tried  and 
convicted,  and  have  appealed  in  error  to  this  court.  The  record  dis- 
closes the  following  facts:  E.  N.  Haney  was  divorced  from  her  hus- 
band, John  Haney,  by  a  decree  of  the  circuit  court  of  De  Kalb  county, 
upon  the  petition  of  the  husband,  charging  her  with  adultery  with 
William  Pennegar.  The  decree  adjudges  the  charge  fully  proven,  and 
the  divorce  was  granted  the  husband  solely  upon  such  charge.  The 
divorced  wife  and  the  partner  in  her  guilt  shortly  after  the  divorce 
went  to  Jackson  county,  state  of  Alabama,  where  they  were  married 
to  each  other,  and  on  the  next  day  after  their  marriage  returned  to  De 
Kalb  county,  in  this  state,  the  place  of  their  former  and  present  resi- 
dence, where  they  have  been  living  and  cohabiting  openly  and  publicly, 
as  man  and  wife,  all  within  13  months  before  the  indictment  found  in 
this  case;   the  divorced  husband,  John  Haney,  still  living. 

Section  3332,  Milliken  &  V.  Code,  enacts :  "When  a  marriage  is  ab- 
solutely annulled,  the  parties  shall,  severally,  be  at  liberty  to  marry 
again;  but  a  defendant  who  has  been  guilty  of  adultery  shall  not 
marry  the  person  with  whom  the  crime  was  -committed,  during  the 
life  of  the  former  husband  or  wife."  The  marriage,  being  prohibited 
by  statute,  is  void,  if  solemnized  in  this  state.  1  Bish.  Mar.  &  Div. 
§'§  46,  233 ;  Carter  v.  Montgomery,  2  Tenn.  Ch.  335 ;  Owen  v.  Bracket. 
7  Lea,  448.  In  the  last  case  cited  this  court  held  the  woman  not  entitled 
to  homestead  where  the  marriage  was  had  in  this  state  in  violation  of 
the  statute  quoted  above.  It  is  admitted  that  there  is  nothing  in  the 
laws  of  Alabama  prohibiting  the  guilty  divorced  party  from  marrying 
the  paramour.  The  question,  therefore,  presented  in  this  record  is 
whether  citizens  of  this  state,  prohibited  by  the  statute  referred  to 
from  marrying,  can,  by  crossing  over  into  a  sister  state,  where  c-uch 
marriages  are  not  inhibited,  claim  the  benefit  of  the  marriage  there 
contracted,  when  they  return  at  once  to  this  state,  having  left  it  for  the 
manifest  purpose  of  evading  our  statute.  The  question  is  of  first 
impression  in  this  state,  and  one  not  free  from  difficulty,  by  reason 
of  certain  well-established  principles,  universally  recognized  in  the 
law  of  marriage,  which  apparently  would  sustain  such  marriage,  chief 
of  which  is  that  which  says:    "A  marriage,  valid  where  solemnized, 


14  see,  also,  Scott  v.  Attorney  General,  L.  R.  11  P.  D.  128  (1S8G) ;    Mock  v. 
Chaney,  3G  Colo.  GO,  87  Pac.  538  (190G). 


Ch.    3)  FAMILY  LAW.  529 

is  valid  everywhere."  Adjudged  cases  are  to  be  found  which,  under 
the  supposed  application  of  this  rule,  have  sustained  marriages  identical 
with  the  one  at  bar  in  all  of  its  essential  facts,  while  others  of  equal 
respectability  have  reached  a  different  result;  to  some  or  both  of  which 
we  will  refer  later  on.  Before  doing  so,  let  us  see  what  are  the  general 
principles  controlling  in  cases  of  this  character.  JNIarriage  is  an  insti- 
tution recognized  and  governed  to  a  large  degree  by  international  law, 
prevailing  in  all  countries,  and  constituting  an  essential  element  in  all 
earthly  society.  The  well-being  of  society,  as  it  concerns  the  relation 
of  the  sexes,  the  legitimacy  of  offspring,  and  the  disposition  of  prop- 
erty, alike  demand  that  one  state  or  nation  shall  recognize  the  validity 
of  marriage  had  in  other  states  or  nations,  according  to  the  laws  of 
the  latter,  unless  some  positive  statute  or  pronounced  public  policy 
of  the  particular  state  demands  otherwise.  It  may  be  said,  therefore, 
to  be  a  rule  of  universal  recognition  in  all  civilized  countries  that  in 
general  a  marriage  valid  where  celebrated  is  valid  everywhere.  We 
say  "in  general,"  because  there  are  exceptions  to  the  rule  as  well  es- 
tablished as  the  rule  itself.  These  exceptions  or  modifications  of  the 
general  rule  may  be  classified  as  follows :  First,  marriages  which  are 
deemed  contrary  to  the  law  of  nature,  as  generally  recognized  in 
Christian  countries ;  second,  marriages  which  the  local  law-making 
power  has  declared  shall  not  be  allowed  any  validity,  either  in  express 
terms  or  by  necessary  impHcation.  To  the  first  class  belong  those 
which  involve  polygamy  and  incest;  and  in  the  sense  in  which  the 
term  "incest"  is  used,  are  embraced  only,  such  marriages  as  are  incestu- 
ous according  to  the  generally  accepted  opinion  of  Christendom,  which 
relates  only  to  persons  in  direct  line  of  consanguinity,  and  brothers  and 
sisters.  The  second  class,  i.  e.,  those  prohibited  in  terms  by  the  stat- 
ute, presents  difficulties  that  are  not  always  easy  of  solution,  and  have 
led  to  conflicting  decisions.  This  class  may  be  subdivided  into  two 
classes :  First,  where  the  statutory  prohibition  relates  to  form,  cere- 
mony, and  qualification,  it  is  held  that  compliance  with  the  law  of  the 
place  of  marriage  is  sufficient,  and  its  validity  will  be  recognized,  not 
only  in  other  states  generally,  but  in  the  state  of  the  domicile  of  the 
parties,  even  where  they  have  left  their  own  state  to  marry  elsewhere, 
for  the  purpose  of  avoiding  the  laws  of  their  domicile.  Instead  of 
being  called  a  subdivision  of  the  second  class  of  exceptions,  it  would 
be  more  accurate  to  say  that  it  is  an  exception  to  the  exception,  and 
falls  within  the  operation  of  the  general  rule  first  announced,  of 
"valid  where  performed,  valid  everywhere."  To  the  second  subdivi- 
sion of  the  second  class  of  exceptions  belong  cases  which,  prohibited 
by  statute,  may  or  may  not  embody  distinctive  state  policy,  as  aff'ecting 
the  morals  or  good  order  of  society.  • 

It  is  not  always  easy  to  determine  what  is  a  positive  state  policy. 
It  will  not  do  to  say  that  every  provision  of  a  statute  prohibiting  mar- 
riage, under  certain  circumstances,  or  between  certain  parties,  is  indica- 
tive of  a  state  policy  in  the  sense  in  which  it  is  used  in  this  connection. 
LoB.CoNF.L.— 34 


530  PARTICULAR  SUBJECTS.  (Part  2 

To  so  hold  would  be  to  overturn  this  most  solemn  relation,  involving 
legitimacy  of  offspring,  homestead  dower,  and  the  rights  of  property, 
in  the  face  of  the  conclusions  of  approved  text  writers,  and  the  con- 
currence of  the  adjudications  in  numerous  cases,  relating  not  only  to 
forms  or  ceremonies  and  qualifications  of  the  parties,  but  also  to  pro- 
hibited degrees  of  relationship,  not  incestuous  in  the  common  opinion 
of  Christian  countries,  and  relating  to  marriages  between  persons  of 
different  race  and  color.  Each  state  or  nation  has  ultimately  to  de- 
termine for  itself  what  statutory  inhibitions  are  by  it  intended  to  be 
imperative,  as  indicative  of  the  decided  policy  of  the  state  concerning 
the  morals  and  good  order  of  society,  to  that  degree  which  will  render 
it  proper  to  disregard  the  jus  gentium  of  "valid  where  solemnized, 
valid  everywhere."  The  legislature  has,  beyond  all  possible  question, 
the  power  to  enact  what  marriages  shall  be  void  in  its  own  state,  not- 
withstanding their  validity  m  the  state  where  celebrated,  whether 
contracted  between  parties  who  were  in  good  faith  domiciled  in  the 
state  where  the  ceremony  was  performed,  or  between  parties  who  left 
the  state  of  domicile  for  the  purpose  of  avoiding  its  statutes,  when  they 
come  or  return  to  the  state;  and  some  of  the  states  have  in  terms 
legislated  on  the  subject.  Where,  however,  the  legislature,  as  in  our 
own  state,  has  not  deemed  it  proper  or  necessary  to  provide  in  terms 
what  shall  be  the  fate  of  a  marriage  valid  where  performed,  but  has 
in  the  particular  case  contented  itself  with  merely  prohibiting  such 
marriages,  the  duty  is  devolved  upon  the  courts  of  determining,  from 
such  legislation  as  is  before-  it,  whether  the  marriage  in  the  other 
state  is  valid  or  void  when  the  parties  come  into  this  state. 

If,  as  we  have  seen,  the  statutory  inhibition  relates  to  matters  of 
form  or  ceremony,  and  in  some  respects  to  qualification  of  the  parties, 
the  courts  would  hold  such  marriage  valid  here;  but  if  the  statutory 
prohibition  is  expressive  of  a  decided  state  policy  as  a  matter  of  morals, 
the  courts  must  adjudge  the  marriage  void  here,  as  contra  bonos  mores. 
Thus,  in  State  v.  Bell,  7  Baxt.  9,  32  Am.  Rep.  549,  this  court  held  that 
a  marriage  between  a  white  person  ajid  a  negro,  valid  in  Mississippi, 
where  celebrated,  was  void  here,  in  a  case  where  the  parties  were  domi- 
ciled in  Mississippi  at  the  time  of  the  marriage.  This  case  is  distin- 
guishable from  the  case  at  bar,  not  only  by  reason  of  the  domicile  in 
Mississippi,  but  also  in  that  we  have  a  highly  penal  statute  on  the  sub- 
ject of  marriages  between  whites  and  blacks,  passed  in  1870,  in  amend- 
ment of  the  act  which  prohibited  such  marriage  theretofore,  and  by 
the  very  pronounced  convictions  of  the  people  of  this  state  as  to  the 
demoralization  and  debauchery  involved  in  such  alliances.  The  de- 
cision in  the  above  case  is  so  manifestly  in  keeping  with  sound  prin- 
ciples now  well  established  that -it  need  not  be  here  fortified  by  cita- 
tion of  authority ;  but  we  pause  to  call  attention  to  a  case  relied  on  by 
counsel  for  defendants,  holding  not  only  that  such  a  marriage,  sol- 
emnized in  Rhode  Island,  (where  it  was  legal,)  between  persons  domi- 
ciled there,  would  be  valid  in  Massachusetts,  but  that  it  was  valid  in 


I 


Ch.    3)  FAMILY  LAW.  531 

the  latter  state  where  the  parties  had  left  Massachusetts,  and  gone  into 
Rhode  Island,  for  the  express  purpose  of  evading  the  Massachusetts 
law  prohibiting  such  marriage,  and  returned  to  Massachusetts.  Med- 
way  V.  Needham,  16  Mass.  157,  8  Am.  Dec.  131.  This  was  certainly 
carrying  the  doctrine  of  "valid  where  performed,  valid  everywhere," 
to  an  extreme  limit.  The  case  has  been  much  criticised, — more  so, 
indeed,  than  it  deserves,  as  it  seems  to  us;  for  while,  to  our  mind,  the 
result  is  startling,  it  is  not  out  of  harmony,  in  its  argument,  with  the 
principles  we  have  stated.  The  learned  judge  delivering  the  opinion, 
in  speaking  of  the  exception  to  the  general  rule,  says :  "Motives  of 
policy  may  likewise  be  admitted  into  consideration  of  the  extent 
to  which  this  exception  is  to  be  allowed  to_operate.  If  without  any 
restriction,  then  it  might  be  that  incestuous  marriages  might  be  con- 
tracted between  citizens  of  a  state  where  they  were  held  unlawful  and 
void,  in  countries  where  they  were  not  prohibited,  and  the  parties  re- 
turn to  live  in  defiance  of  the  religion  and  laws  of  their  own  country. 
But  it  is  not  to  be  inferred  from  a  toleration  of  marriages  which  are 
prohibited  merely  on  account  of  political  expediency,  that  others, 
which  would  tend  to  outrage  the  principles  and  feelings  of  all  civilized 
nations,  would  be  countenanced."  So  that  the  difference  between  this 
case  and  State  v.  Bell,  7  Baxt.  9,  32  Am,  Rep.  549,  is  a  dift'erence  in 
the  "motives  of  policy"  and  ideas  of  "political  expediency."  We  do 
not  think,  therefore,  that  the  case  is  open  to  the  criticism  passed  upon 
it  by  the  lord  chancellor  in  Brook  v.  Brook,  9  H.  L.  Cas.  193,  which 
case  is  itself,  with  equal  propriety,  criticised  by  Gray,  C.  J.,  in  Com.  v. 
Lane,  113  Mass.  458,  18  Am.  Rep.  509,  which  contains  a  very  able 
and  elaborate  review  of  the  subject  under  consideration.  Though  un- 
able to  concur  in  some  of  the  arguments,  and  especially  with  the  dic- 
tum that  "a  marriage  which  is  prohibited  here  by  statute,  because 
contrary  to  the  policy  of  our  laws,  is  yet  valid  if  celebrated  elsewhere, 
according  to  the  law  of  the  place,  even  if  the  parties  are  citizens  and 
residents  of  this  commomvealth,  and  have  gone  abroad  for  the  purpose 
of  evading  our  laws,  unless  the  legislature  has  clearly  enacted  that 
such  marriages  out  of  the  state  shall  have  no  validity  here."  Of 
course  we  refer  to  so  much  of  the  above  as  we  have  italicised,  for  it 
is  the  purest  dictum ;  it  being  a  case  where  there  was  no  proof  of  an 
intent  to  evade  the  laws  of  Massachusetts,  as  is  shown  by  the  judge 
himself,  who  concludes  his  opinion  as  follows :  "Upon  the  principles 
and  authorities  stated  in  the  earlier  part  of  this  opinion,  it  certainly 
cannot  invalidate  a  subsequent  marriage  in  another  state,  according  to 
its  laws,  at  least  without  proof  that  the  parties  went  into  that  state, 
and  were  married  there,  with  the  intent  to  evade  the  provisions  of  the 
statutes  of  this  commonwealth.  No  such  intent  being  shown  in  this 
case,  we  need  not  consider  its  eft'ect,  if  proved,  nor  whether  the  in- 
dictment was  in  due  form."  This  case  being  an  indictment  for  polyg- 
amy, where  a  wife,  having  obtained  a  divorce  on  account  o£  the  hus- 
band's adultery,  (in  which  case  he  was  prohibited  from  marrying  again 


532  PARTICULAR  SUBJECTS.  (Part  2 

without  leave  of  the  court.)  the  husband  married  another  woman  in 
another  state  without  proof  that  the  second  wife  ever  resided  in  Massa- 
chusetts prior  to  her  marriage,  and  without  proof  of  a  purposed  eva- 
sion of  the  Massachusetts  law. 

Recurring  for  a  moment  to  Medway  v,  Needham,  it  may  well  be 
that,  recognizing  and  applying  the  same  general  principles,  the  courts 
in  different  states  may  reach  different  results  in  the  same  class  of 
cases,  according  as  the  general  and  fixed  sentiment  of  the  public  in 
the  respective  states  may  differ  in  matters  of  public  policy,  and,  if  not, 
of  "political  expediency."  What  might  be  deemed  a  mere  regulation 
in  one  state  might  be  regarded  as  a  matter  vitally  affecting  the  morals 
and  good  order  of  society  in  another;  so  that  what  is  pointed  out  as 
a  reproach  to  the  law  by  reason  of  the  conflict  in  the  reported  cases 
from  different  states  and  nations  is  in  fact  evidence  of  the  universali- 
ty of  the  general  principles  recognized  as  fundamental  by  all  enlighten- 
ed courts;  the  different  results  reached  being  due  to  the  statutory 
enactments  of  the  different  states  as  construed  by  courts  thereof, 
who  interpret  the  meaning,  intent,  and  scope  of  each  particular  stat- 
ute on  the  subject  of  marriage  in  the  light  of  the  known  policy  of  the 
state,  deviating  from  the  general  principles  of  the  international  law 
of  marriage  only  so  far  as  they  are  constrained  to  do  so  by  the  terms 
of  legislative  enactments,  or  by  the  manifest  and  distinctive  policy  of 
the  state,  as  understood  by  the  courts.  Now,  believing,  as  we  do,  that 
the  statute  in  question,  which  we  are  called  upon  to  construe  in  the 
case  at  bar,  is  expressive  of  a  decided  state  policy  not  to  permit  the 
sensibilities  of  the  innocent  and  injured  husband  or  wife,  who  has 
been  driven  by  the  adultery  of  his  or  her  consort  to  the  necessity  of 
obtaining  a  divorce,  to  be  wounded,  nor  the  public  decency  to  be  af- 
fronted, by  being  forced  to  witness  the  continued  cohabitation  of  the 
adulterous  pair,  even  under  the  guise  of  a  subsequent  marriage  per- 
formed in  another  state  for  the  purpose  of  avoiding  our  statute,  and 
believing  that  the  moral  sense  of  the  community  is  shocked  and  outrag-. 
ed  by  such  an  exhibition,  we  will  not  allow  such  parties  to  shield 
themselves  behind  a  general  rule  of  the  law  of  marriage,  the  wisdom 
and  perpetuity  of  which  depends  as  much  upon  the  judicious  excep- 
tions thereto,  as  upon  the  inherent  right  of  the  rule  itself. 

After  what  has  been  already  said  in  the  earlier  part  of  this  opinion, 
it  is  doubtless  unnecessary  to  say  that  in  reaching  the  conclusion  just 
announced  we  do  not  intend  in  the  slighest  degree  to  encroach  upon 
the  principle  which  recognizes  as  valid  marriages  had  in  other  states 
where  the  parties  have  gone  to  such  other  states  for  the  purpose  of 
avoiding  our  own  laws  in  matters  of  form,  ceremony,  or  qualification 
merely ;  but,  confining  ourselves  to  the  facts  of  this  case,  we  hold  that 
where  citizens  of  this  state  withdraw  temporarily  to  another  state, 
and  there  marry,  for  the  purpose  and  with  the  intent  of  avoiding  the 
statute  in  question,  passed  in  pursuance  of  a  determined  policy  of  the 
st^te,  in  the  interest  of  public  morals,  peace,  and  good  order  of  society, 


Ch.    3)  FAMILY  LAW.  533 

such  parties,  upon  their  return  to  this  state,  and  cohabiting  as  man 
and  wife,  are  liable  to  indictment  in  the  courts  of  this  state  for  lewd- 
ness. 

The  case  of  Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110,  24  Am.  Dec. 
444,  has  no  concern  with  the  point  adjudged  in  the  case  at  bar.  That 
case  merely  decides  that  a  person  divorced  in  Kentucky  for  adultery, 
and  not  by  the  laws  of  that  state  permitted  to  marry  again,  might 
contract  a  valid  marriage  in  this  state  prior  to  the  act  of  1835,  which 
for  the  first  time  prohibited  such  marriages ;  and,  having  come  to  this 
state  in  good  faith,  married,  and  continued  to  reside  here  up  to  the 
time  of  her  husband's  death,  she  was  held  entitled  to  dower.  The  only 
instruction  to  be  drawn  from  this  case  is  that,  notwithstanding  our 
statute,  these  parties  might  have  contracted  a  marriage  in  Alabama, 
where  there  is  no  similar  statute,  had  they  removed  there  in  good  faith, 
which  would  be  valid  in  that  state. 

Putnam  v.  Putnam,  8  Pick.  (Mass.)  433,  is  a  case  deciding  directly 
contrary  to  the  conclusion  we  have  reached,  and  the  facts  in  that  case 
were  identical  with  this.  It  is  extremely  brief,  is  unsatisfactory  to 
us  from  every  point  of  view,  and  is  predicated  entirely  upon  the  case 
of  Medway  v.  Needham,  16  Mass.  157,  8  Am.  Dec.  131,  decided  10 
years  before,  which  the  court  said  was  "binding  upon  us  and  the 
community  until  the  legislature  shall  see  fit  to  alter  it."  While  speak- 
ing of  Medway  v.  Needham,  the  opinion  continues:  "The  court  were 
aware  of  all  the  objections  to  the  doctrine  in  that  case,  and  knew  it 
to  be  vexata  qusestio  among  civilians ;  but  they  adopted  the  rule  of 
the  law  of  England  on  this  subject,  on  the  same  ground  it  was  adopt- 
ed there,  namely,  the  extreme  dajiger  and  difficulty  of  vacating  a 
marriage  which,  by  the  laws  of  the  country  where  it  was' entered  into, 
was  valid."  It  is  manifest  that  the  effort  to  fortify  Medway  v.  Need- 
ham by  assuming  that  it  is  based  on  the  law  of  England  must  fail 
if  the  house  of  lords  are  competent  to  testify  as  to  the  state  of  the 
law  in  England  on  the  subject,  for  we  find  that  in  Brook  v.  Brook, 
9  H.  L.  Cas.  219,  the  lord  chancellor,  in  speaking  of  the  case  of 
Medway  v.  Needham,  as  we  have  already  seen,  says :  "It  is  entitled 
to  but  little  weight,  and  is  based  upon  decisions  which  relate  to  form 
and  ceremony  of  marriage ;"  and  adds :  "If  a  marriage  is  absolute- 
ly prohibited  in  any  country  as  being  contrary  to  public  policy,  and 
leading  to  social  evils,  I  think  that  the  domiciled  inhabitants  in  that 
country  cannot  be  permitted,  by  passing  the  frontier,  and  entering 
another  state  in  which  the  marriage  is  not  prohibited,  to  celebrate  a 
marriage  forbidden  by  their  own  state,  and,  immediately  returning 
to  their  own  state,  to  insist  on  their  marriage  being  recognized  as  law- 
ful." This  is,  in  our  opinion,  the  true  doctrine,  and  we  have  quoted 
so  much  to  show  that  the  highest  English  court  does  not  hold  to  the 
principle  upon  which  it  is  claimed  by  the  Massachusetts  court  the 
Medway  Case  is  based.  But  with  due  deference  we  must  be  permitted 
to  say  that  the  decision  in  the  case  of  Brook  v.  Brook  goes  further 


534  PARTICULAR  SUBJECTS.  (Part   2 

than  we  think  the  principle  announced  requires, — further  at  least  than 
we  would  be  inclined  to  go, — when,  as  was  done  in  that  case,  it  was 
held  that,  while  both  were  resident  in  England,  the  man  marrying 
his  deceased  wife's  sister  in  Denmark,  where  such  marriage  was  legal, 
and  returning  to  England,  the  marriage  was  void  there,  because  a  mar- 
riage between  parties  so  related  was  contrary  to  the  laws  of  England. 
Such  a  marriage  would,  we  think,  not  fall  within  any  of  the  excep- 
tions to  the  general  rule.  It  certainly  cannot  be  said  to  be  incestuous 
in  the  estimation  of  Christendom,  and  it  would  seem  that  under  the 
policy  of  many  of  the  states  of  this  Union  such  a  marriage  is  not  im- 
moral, nor  tending  to  any  social  evil  affecting  the  welfare  of  society. 
But,  after  all,  it  must  be  admitted  that  it  was  for  that  court  to  deter- 
mine whether  or  not  the  law  infringed  was  indicative  of  a  decided 
and  essential  public  policy  in  England ;  and  the  courts  of  that  coun- 
try would  doubtless  be  as  slow  to  approve  our  estimate  of  the  public 
policy  which  condemns  the  marriage  of  the  divorced  adulterer,  since 
the  clause  prohibiting  such  marriage  was,  upon  the  argument  of  Lord 
Palmer ston,  that  the  guilty  party  was  preserved  from  ruin  by  such  a 
marriage,  stricken  from  the  divorce  bill  in  the  house  of  commons,  as 
we  are  to  accept  their  opinion  that  a  marriage  between  a  man  and  his 
deceased  wife's  sister  is  contrary  to  good  morals. 

We  return  for  a  moment  to  Putnam  v.  Putnam,  supra,  to  note  that 
the  court  in  this  case  closes  its  opinion  with  this  language :  that  "if 
it  shall  be  found  inconvenient  or  repugnant  to  sound  principles  [the 
italics  are  ours]  it  may  be  expected  that  the  legislature  will  explicitly 
enact  that  marriages  contracted  within  another  state,  which,  if  en- 
tered into  here,  would  be  void,  s]jall  have  no  force  within  this  com- 
monwealth."" The  legislature  did  shortly  thereafter  so  enact;  whether 
because  the  doctrine  laid  down  in  the  case  was  inconvenient,  or  be- 
cause repugnant  to  sound  principle,  does  not  appear.  In  our  view  of 
the  law,  both  considerations  might  well  have  moved  the  legislature. 
Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193,  is  a  case  holding  the  doc- 
trine of  Putnam  v.  Putnam,  and,  after  what  we  have  said  about  the 
latter  case,  need  not  be  further  noticed  here. 

Van  Storch  v.  Griffin,  71  Pa.  240,  does  not  sustain  the  contention 
of  counsel  on  the  point  decided,  as  there  is  nothing  in  the  case  to  show 
that  the  parties  went  from  one  state  to  the  other  for  the  purpose  of 
evading  the  laws  of  the  one.  It  merely  holds  that  the  decree  of  di- 
vorce in  New  York,  which  forbade  the  respondent  from  marrying 
again  during  the  life  of  the  libelant,  had  no  extraterritorial  effect; 
so  that  what  is  said  in  the  opinion  about  going  from  one  state  to  the 
other  for  the  purpose  of  evading  the  law  of  the  state  granting  the 
divorce  is- dictum,  pure  and  simple. 

In  full  accord  with  the  conclusion  we  have  reached  in  the  case  at  bar 
is  Kinney  v.  Com.,  30  Grat.  (Va.)  858,  32  Am.  Rep.  690,  where  it 
'was  held  that  a  marriage  between  a  negro  and  a  white  person,  had  in 
the  District  of  Columbia,  for  the  purpose  of  evading  the  law  of  Vir- 


Ch.    3)  FAMILY  LAW.  535 

ginia,  was  void  upon  their  return.  To  tlie  same  effect,  see  State  v. 
Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683;  Scott  v.  State,  39  Ga.  321; 
Dupre  V.  Boulard,  10  La.  Ann.  411.  The  intention  to  evade  the  law 
by  going-  into  another  state  was  made  the  test  of  its  vahdity  in  North 
CaroHna,  as  will  be  seen  by  reference  to  the  two  cases  of  State  v. 
Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683,  above  cited,  and  State  v. 
Ross,  76  N.  C.  242,  22  Am.  Rep.  678, — both  marriages  between  a 
white  person  and  a  negro.  In  Kennedy's  Case,  such  intention  being 
shown,  the  marriage  was  held  void ;  while  in  Ross'  Case,  it  being 
shown  that  there  was  no  intent  to  return  to  North  Carolina,  though 
the  parties  afterward  did  so,  the  defendant  was  held  not  guilty  of 
fornication.  This  was,  however,  by  a  divided  court,  and  is  contrary 
to  our  own  case  of  State  v.  Bell,  7  Baxt.  9,  32  Am.  Rep.  549. 

We  conclude  this  opinion,  already  too  long,  by  a  reference  to  Wil- 
liams V.  Oates,  27  N.  C.  535,  where  Chief  Justice  Ruffin,  in  deliver- 
ing the  opinion  of  the  court  in  a  case  very  similar  to  our  own,  says : 
"Now,  if  the  law  of  South  Carolina  allow  of  such  a  marriage,  and 
although  it  be  true  that  generally  marriages  are  to  be  judged  by  the 
lex  loci  contractus,  yet  every  country  must  so  far  respect  its  own  laws 
and  their  operation  on  its  own  citizens  as  not  to  allow  them  to  be 
evaded  by  acts  in  another  country,  purposely  to  defraud  them."  See, 
also,  Whart.  Confl.  Laws,  §§  135,  181,  182. 

Let  the  judgment  of  the  circuit  court  be  affirmed.^" 

15  Accord:  In  re  Stull's  Estate,  183  Pa.  G25,  39  Atl.  16,  39  K  R.  A.  539,  63 
Am.  St.  Rep.  776  (1898).  Contra:  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  40 
Am.  Rep.  505  (1881). 

It  was  held  in  Newman  v.  Kimbrough,  59  S.  W.  1061,  52  Lr.  R.  A.  668 
(1900),  by  the  Court  of  Chancery  Appeals  of  Tennessee,  affirmed  orally  by 
the  Supreme  Court  of  that  state,  that  such  a  marriage  would  be  void,  al- 
though the  parties  had  not  gone  to  the  state  where  the  marriage  was  cele- 
brated for  the  purpose  of  evading  the  law  of  the  forum.  See.  in  general, 
60  Am.  St.  Rep.  941-947 ;    57  L.  R.  A.  169-171. 

A  marriage  valid  under  the  lex  loci  et  domicilii  may  be  denied  recogni- 
tion on  the  groimd  that  it  does  not  conform  to  the  notion  of  a  "Christian" 
marriage.  Hyde  v.  Hyde  [1866]  L.  R.  1  P.  &  D.  130.  See  Wharton,  Conflict 
of  Laws,  §  131a. 

As  to  Indian  marriages,  see  Wall  v.  Williamson,  8  Ala.  48  (1844);  Earl  v. 
Godley,  42  Minn.  361,  44  N.  W.  254.  7  U  R.  A.  125.  18  Am.  St.  Rep.  517 
(1890) ;    Roche  v.  Wasliington.  19  Ind.  53,  81  ^^i.  Dee.  376  (1862). 

As  to  law  governing  the  essentials  of  a  marriage,  see.  in  general.  57  L.  R. 
A.  159-173 ;    Bishop  on  Marriage.  Divorce  and  Separation,  §§  841-906. 

Continental  Law. — (a)  Form. — The  rule  "locus  regit  actum"  governs. 
France,  Art.  170,  Civ.  Code  (see.  also,  article  171,  Civ.  Code) :  App.  Douai,  Dec. 
5,  1904  (2  Darras,  189) ;  App.  Douai,  Nov.  18,  1903  (S.  1906,  1,  161).  Ger- 
many, Art.  11,  Law  lutr.  Civ.  Code.  Italy,  Art.  9,  Prel.  Disp.  Civ.  Code;  Arts. 
100-101,  Civ.  Code ;  Cass.  Palermo,  Aug.  5,  1905  (34  Clunet,  849).  It  is  suffi- 
cient, however,  if  the  form  required  by  the  national  law  be  obsen^ed.  Ger- 
many, Art.  11,  Law  Intr.  Civ.  Code.  Italy,  Art.  9,  Prel.  Disp.  Civ.  Code.  Cer- 
tain exceptions  to  the  rule  "locus  regit  actiun"  exist.  In  Germany  no  mar- 
riage can  be  celebrated  except  according  to  the  form  prescribed  by  Ger- 
man law.  Article  13,  Law  Intr.  Civ.  Code.  In  France  it  is  established  law 
that,  if  Frenchmen  resort  to  another  jurisdiction  for  the  purpose  of  e^'adiug 
French  law,  the  marriage  will  not  be  recognized,  notwithstanding  it  was 
celebrated   in   accordance   with    the   formal    requirements   of  the  local   law. 


(Part  2 


^      ^  "*'"       SECTION  2.— DIVORCE. 

•      LE  MESURIER  v.  LE  MESURIER. 

1  Committee  of  the  Privy  Council,  1895.    L.  R.  App.  Cas.  517.) 

Appeal  from  the  Supreme  Court  of  Ceylon  dismissing  appellant's 
libel  for  divorce  on  the  ground  of  lack  of  jurisdiction!  Appellant  was 
an  Ei^glTsHman  by  birth  and  at  the  time  when  this  action  was  instituted 
retained  his  English  domicil  of  origin.  The  marriage  with  the  re- 
spondent, a  Frenchwoman,  had  taken  place  in  England.  Their  prin-. 
cipal  residence  from  the  date  of  their  marriage  until  the  commence- 
ment of  this  suit  had  been  in  Ceylon,  but  neither  was  domiciled  there. 
None  of  the  respondents  except  the  wife  were  residents  of  Ceylon  and 
none  of  the  matrimonial  offenses  charged  had  been  committed  within 
the  jurisdiction  of  the  courts  of  Ceylon. ^^ 

Cass.  July  5,  1905  (33  Clunet,  1145);  Cass.  Jan.  3,  1906  (S.  1906,  1,  142); 
Trib.  1st  Inst.  Tunis,  Feb.  27,  1907  (35  Clunet,  496). 

Tbe  above  rules  are  subiect  to  the  provisions  of  the  Convention  of  the 
Hague  of  June  12,  1902.     See  Appendix  A,  I. 

A  defect  of  form  may  be  cured  by  a  "possession  d'etat,"  1.  e.,  the  general 
and  public  reputation  of  having  a  certain  status.  See  article  196,  Frencti 
Civ.  Code,  with  annotations  thereto  by  Sirey,  "Les  Codes  Annot6s."  Compare 
Trib.  Civil  Seine,  March  5,  1907  (35  Clunet,  814).  So,  Italy,  Art.  119,  Civ. 
Code. 

(b)  Essentials.— France. — ^The  national  law  of  the  parties  governs.  Art. 
3,  Civ.  Code.  So  as  to  consent  of  parents.  App.  Besangon,  Jan.  4,  1888  (D. 
1889,  2,  69).  So  as  to  necessity  of  a  religious  ceremony.  Trib.  Civ.  Seine, 
April  28,  1906  (2  Darras,  751);  Trib.  Civ.  Seine,  Nov.  25,  1907  (4  Darras,  242). 
So  as  to  grounds  for  which  a  marriage  may  be  annulled.  Trib.  1st  Inst. 
Tunis,  Nov.  27,  1907  (35  duuet,  811).  But  if  the  parties  possess  different  na- 
tionalities, a  suit  to  annul  a  marriage  on  the  ground  that  such  a  religious 
ceremony  was  omitted  can  be  brought  only  by  the  party  whose  national  law 
was  violated.    Trib.  Civ.  Seine,  Feb.  14,  1908  (35  Clunet,  813). 

As  to  putative  marriages,  see  articles  201,  202,  Civ.  Code ;  App.  Bordeaux, 
Feb.  5,  1883  (S.  1883,  2,  137) ;  App.  Alger,  June  28,  1887  (D.  1889,  2,  78). 

Germany. — If  either  party  is  a  German,  or  if  a  marriage  between  foreigners 
is  contracted  in  Germany,  each  party  is  governed  by  his  or  Tier  national  law 
(article  13,  Law  Intr.  Civ.  Code),  subject,  however,  to  renvoi  (article  27). 
See,  also,  J.  Keidel,  Le  droit  international  prive  dans  le  nouveau  Code  Civil 
Allemand,  26  Clunet,  30-39. 

Italy. — The  national  law  of  each  of  the  parties  applies.  Article  102,  Civ. 
Code;  App.  Lucca,  April  17,  1891  (Annali  1891,  2,  310);  App.  Florence,  Aug. 
7,  1907  (La  Legge  1907,  230).  But  a  foreigner  marrying  in  Italy  is  sub- 
ject to  all  the  restrictions  established  by  articles  55-69  of  the  Civil  Code. 
Article  102,  Civ.  Code;  App.  Ancona,  March  12,  1884  (Foro  It.  1884,  1,  574). 
See,  also,  P.  Fiore,  Du  mariage  celebre  a  I'etranger  suivant  la  legislation  ital- 
ienne,  13  Clunet.  161-177,  299-312;    14  Clunet.  46-54,  154-161. 

The  above  rules  are  subject  to  the  provisions  of  the  Convention  of  the 
Hague  of  June  12,  1902.  See  Appendix  A,  I.  See,  also,  Baligand,  Der  riium- 
liche  Geltungsbereich  der  Rechtsiitze  liber  den  Ehevertj'ag,  17  Niemeyer,  202- 
223 ;  E.  Bettelheim,  Das  inteniationale  Eherecht  nach  der  Haager  Konveu- 
tion,  17  Niemeyer,  597-645 ;  Maurice  Sicore,  Le  droit  de  contractor  mariage 
d'apres  la  convention  de  la  Ilaye  du  12  Juin,  1902,  34  Clunet,  1010-1016;  G- 
C.  Buzzati,  Tratado  di  diritto  iiitornazionale  privato  secondo  le  convenzioni 
deir  Aja,  Vol.  I,  Introduzione,  II  matrimonio  (1908). 

10  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


Ch.    3)  FAMILY  LAW.  537 

Lord  Watson.  [After  examining  the  English  and  S(?otch  authori- 
ties upon  the  subject,  the  learned  justice  continued  as  follows :] 

When  carefully  examined,  neitJTerjhe  English  nor  the  Scottish  de^ 
cisions  are,  in  their  Lordships'  opinion^  sufficient  to^sjablish  the  prop-^ 
ositiorrthafrurerther'afTliele'c'ountries,  there  exists  a  recognised  rule 
of  general  lawTto  the 'effect  That  a  so-caHedjjTatrimQniaTdomicil  giv^ 
j  urisdictimMxjjIiggSE^elmarriage. 

TollernacHT  v.  Tollemache,  1  Sw.  &  Tr.  557,  which  was  decided 
by  three  judges  in  1859,  shortly  after  the  passmg  of  the  Divorce  Act, 
appears  to  be  an  authority  to  the  contrary.  The  learned  judges  sus- 
tained the  jurisdiction  of  the  English  Court,  which  was  the  forum  of 
the  husband's  domicil,  and  disregarded  as  incompetent  a  decree  of  the 
Court  of  Session  dissolving  his  marriage,  although  he  had  a  matri- 
monial domicil  in  Scotland,  where  he  had  bona  fide  resided  for  four 
years  with  his  wife,  neither  casually  nor  as  a  traveler.  Then  in  Brodie 
V.  Brodie,  2  Sw.  &  Tr.  259,  in  the  year  1861,  three  learned  judges  de- 
cided the  opposite,  holding  that  residence  of  that  kind,  which  had  been 
found  in  Tollemache  v.  Tollemache,  1  Sw.  &  Tr.  557,  to  be  sufficient 
to  give  jurisdiction  to  a  Scottish  Court  where  the  domicil  was  Eng- 
lish, was  nevertheless  sufficient  to  give  jurisdiction  to  themselves  where 
the  domicil  was  Australian.  In  Wilson  v.  Wilson,  L.  R.  2  P.  &  D. 
435,  jurisdiction  was  sustained  by  Lord  Penzance  upon  the  ground 
that  the  petitioner  had  acquired  an  English  domicil,  with  an  expres- 
sion of  opinion  by  his  Lordship  that  such  domicil  ought  to  be  the  sole 
ground  of  jurisdiction  to  dissolve  marriage.  In  Niboyet  v.  Niboyet, 
4  P.  D.  1,  Sir  Robert  Phillimore  expressed  a  similar  opinion,  and  dis- 
missed the  suit  of  the  petitioner,  who  had  a  matrimonial  domicil  in 
England  which  fully  answered  the  definition  of  such  domicil  given 
either  in  Brodie  v.  Brodie,  2  Sw.  &  Tr.  259,  or  in  Pitt  v.  Pitt,  1  Court 
of  Sess.  Cas.,  3rd  Series,  106 ;  4  Macq.  App.  Cas.  627.  His  decision 
was,  no  doubt,  reversed  in  the  Court  of  Appeal ;  but  it  had  the  support 
of  the  present  Master  of  the  Rolls,  and  their  Lordships  have  already 
pointed  out  that  the  judgment  of  the  majority  was  mainly,  if  not  al- 
together, based  upon  a  reason  which  will  not  bear  scrutiny. 

The  Scottish  decisions  appear  to  their  Lordships  to  be  equally  in- 
efficient to  show  that  a  matrimonial  domicil  is  a  recognised  ground 
of  divorce  jurisdiction.  So  far  as  they  go,  they  are  consistent  enough, 
but  the  doctrine  appears  to  have  had  a  very  brief  existence,  because 
the  three  cases  in  which  it  was  applied  all  occurred  between  the  7th 
of  February  and  the  14th  of  December  in  the  year  1862.  Although, 
owing  to  the  course  taken  by  the  appellant's  counsel  in  Pitt  v.  Pitt,  1 
Court  Sess.  Cas.,  3rd  Series,  106 ;  4  Macq.  App.  Cas.  627,  the  House 
of  Lords  had  not  an  opportunity  of  expressly  deciding  the  point, 
there  can  be  little  doubt  that  the  approval  of  the  course  adopted  by 
counsel,  which  was  openly  expressed  by  Lord  Westbury,  has  had  the 
effect  of  discrediting  the  doctrine  in  Scotland;  and  it  is  impossible  to 
affirm  that  the  Court  of  Session  would  now  give  effect  to  it.     The 


538 


PARTICULAR  SUBJECTS. 


(Part  2 


eminent  judg'e  who,  in  18G3,  was  the  first  to  give  a  full  and  clear  ex- 
position of  the  doctrine  of  matrimonial  domicil,  spoke  of  it,  in  the 
year  1882,  not  as  a  doctrine  accepted  in  the  law  of  Scotland,  but  as 
matter  of  speculation. 

It  is  a  circumstance  not  undeserving  of  notice  that  the  learhed  judg- 
es, whether  English  or  Scottish,  who  have  expressed  judicial  opin- 
ions in  favor  of  a  matrimonial  domicil,  have  abstained  from  refer- 
ence to  those  treatises  on  international  law  which  are  generally  re- 
garded as  authoritative,  in  the  absence  of  any  municipal  law  to  the 
contrary.  The  reason  for  their  abstinence  is  probably  to  be  found 
in  the  circumstance  that  nothing  could  be  extracted  from  these  sources 
favorable  to  the  view  which  they  took.  Their  Lordships  are  of  opinion 
that  m  deciding  the  present  case,  on  appeal  from  a  Colony  which  is 
governed  by  the  principles  of  the  Roman-Dutch  law,  these  authori- 
ties ought  not  to  be  overlooked. 

Huber  (Lib.  1,  titl.  3,  §  2,  De  Confl.  Leg.)  states  the  rule  of  inter- 
national law  in  these  terms :  "Rectores  imperiorum  id  comiter  agunt, 
ut  jura  cuj usque  populi  intra  termmos  ejus  exercita  teneant  ubique 
suam  vim,  quatenus  nihil  potestati  aut  juri  alterius  imperantis  ejusque 
civium  praejudicetur."  That  passage  was  cited  with  approbation  by 
Lord  Cranworth  and  Lord  Westbury  in  Shaw  v.  Gould,  L.  R.  3  H. 
L.  72,  81.  To  the  same  effect,  but  in  language  more  pointed,  is 
the  text  of  Rodenburg  (De  Stat.  Divers,  tit.  1,  c.  3,  §  4)  cited  in  the 
same  case  by  Lord  Westbury :  "Unicum  hoc  ipsa  rei  natura  ac  necessi- 
tas  invexit,  ut  cum  de  statu  et  conditione  hominum  quaeritur,  uni  so- 
lummodo  Judici,  et  quidem  Domicilii,  universum  in  ilia  jus  sit  attribu- 
tum."  The  same  rule  is  laid  downbyJBar,_theJatest  Continental  writer 
on  the  theory  andgixactlce  of  international  privateTawI  He  say§_(sec- 
tion  173,  Gillespie's  Translation,  p.  382,)_J!that-ij^jrctions  of  divorce— 
unless  there  is  some  express  enactment  to  the  contrary — the  judge 
of  the  domicil  or  nationahty'is  tlie  only  competeiitTjuHge^"  And  he 
adds :  "Ade^ree^ oi_di¥QrcertReFeTQEeZ-firQnounced  by  any^therjud^e 
than  a  judge  of  the  domicil  or  nationality,  is  to  be^ regarded  in  all 
other  countries  _as-  inoperative."  " 

There  can^_inJheir_X^dships'  opinion,  be  no  satis factory-caaefl-aE 
interriaTional  law,  regulating  jurisdiction  in  divorce  cases,  which_Js. 
not  capable^oTbein^enu^jate^^ithju^  fo_ensure_^r^- 

tical   umTormit3rin  ItF^applicatio^^^  of 

matnmomaTjdgmjcTr^hich  has  hitherto^^eja,^enT2tedJiaLS_begn^ingu^^ 
larly  wanting  in  precision,  and  not  in  the  least  calculated  to  produce  a 
uniform  result.  TlTe~'Heflnitions'giver]rif]r"Bfodie'v.  Brodie72Sw\  & 
Tn'2597andlfi  Pitt  v.  Pitt,  1  Court  Sess.  Cas.  (3d  Series)  106,  4  Macq. 
App.  Cas,  G27,  appear  to  their  Lordships  to  be  equally  open  to  that 
objection.  Bona  fide  residence  is  an  intelligible  expression,  if,  as 
their  Lordships  conceive,  it  means  residence  which  has  not  been  resorted 
to  for  the  mere  purpose  of  getting  a  divorce  which  was  not  obtain- 
able in  the  country  of  domicil.     Residence  which  is  "not  that  of  a 


Ch.    3)  FAMILY  LAW.  539 

traveler"  is  not  very  definite ;  but  notliing-  can  be  more  vague  than  the 
description  of  residence  which,  not  being  that  of  a  traveler,  is  not 
to  be  regarded  as  "casual."  So  also,  the  place  where  it  is  the  duty 
of  the  wife  to  rejoin  her  husband,  if  they  happen  to  be  living  in  dif- 
ferent countries,  is  very  indefinite.  It  may  be  her  conjugal  duty 
to  return  to  his  society  althougli  he  is  living  as  a  traveler,  or  casu- 
ally, in  a  country  where  he  has  no  domicil.  Neither  the  English  nor 
the  Scottish  definitions,  which  are  to  be  found  in  the  decisions  al- 
ready referred  to,  give  the  least  indication  of  the  degree  of  perma- 
nence, if  any,  which  is  required  in  order  to  constitute  matrimonial 
domicil,  or  afford  any  test  by  which  that  degree  of  permanence  is 
to  be  ascertained.  The  introduction  of  so  loose  a  rule  into  the  jus 
gentium  would,  in  all  probability,  lead  to  an  inconvenient  variety  of 
practice,  and  w^ould  occasion  the  very  conflict  which  it  is  the  object 
of  international  jurisprudence  to  prevent. 

Their  Lordships  attach  great  weight  to  the  consideration  that  the 
theory  of  matrimonial  domicil  for  which  the  appellant  conterlds  has 
never-  been  accepted  in  the  Court  of  last  resort  for  England  and  Scot- 
land. The  matter  does  not  rest  there ;  because  the  theory  is  not  only 
in  direct  opposition  to  the  clear  opinion  expressed  by  Lord  Westbury 
in  Pitt  v.  Pitt,  1  Court  Sess.  Cas.  (3d  Series)  106,  4  Macq.  App.  Cas. 
627,  but  appears  to  their  Lordships  to  be  at  variance  with  the  prin- 
ciples recognised  by  noble  and  learned  Lords  in  Dolphin  v.  Robins, 
7  H.  L.  C.  390,  and  in  Shaw  v.  Gould>  L.  R.  3  H.  L.  55.  It  is  true 
that  in  these  cases,  and  especially  in  Dolphin  v.  Robins,  7  H.  L.  C. 
390,  there  was  ground  for  holding  that  the  spouses  had  resorted  to  a 
foreign  country  and  a  foreign  tribunal  in  order  to  escape  from  the 
law  and  the  Courts  of  their  English  domicil.  But  in  both  the  inter- 
national principle,  upon  which  jurisdiction  to  dissolve  a  marriage  de- 
pends, was  considered  and  discussed;  and  the  arguments  addressed 
to  their  Lordships  in  favor  of  matrimonial  domicil  by  the  learned  coun- 
sel for  the  appellant  appear  to  them  to  be  at  variance  with  the  weighty 
observations  which  were  made  by  noble  and  learned  Lords  in  these 
cases.  In  Dolphin  v.  Robins,  7  H.  L.  C.  390,  Lord  Cranworth  stated 
that  "it  must  be  taken  now  as  clearly  established  that  the  Scotch  Court 
has  no  power  to  dissolve  an  English  marriage,  where,  as  in  this  case, 
the  parties  are  not  really  domiciled  in  Scotland,  but  have  only  gone 
there  for  such  a  time  as,  according  to  the  doctrine  of  the  Scotch 
Courts,  gives  them  jurisdiction  in  the  matter."  In  Shaw  v.  Gould, 
L.  R.  3  H.  L.  55,  the  dicta  of  noble  and  learned  Lords  upon  the  point 
raised  in  this  appeal  were  even  more  emphatic.  Lords  Cranworth 
and  Westbury  expressed  their  entire  approval  of  the  doctrine  laid 
down  by  Huber  and  Rodenburg  in  those  passages  which  have  already 
been  cited.  Their  T .nrdshij^s  did^npt  go  fhe-iength_of  saying  tjia<-  *^->(^ 
Courts  of  no  other  countrv  could  divorce  spouses  wlio  were  domiciled 
in  EffgTaridj_Jinf"TKey  held  that  the  r.onrfs  nf  E.TTg1an(l_^-erenot  bounds 
by  any  principle  of  international  law,  to  recognisp  as  pftVrtnal  tli^  r1^- 


540  PARTICULAR  SUBJECTS.  (Part  2 

cree  of  a  foreign  Court  divorcing  spouses  who,  at  its  date,  had  their 
dmnciI_in_Eng^and.  The  other  noble  arrd  learned  Xbrds  who  took 
part  in  the  decision  of  Shaw  v.  Gould,  L  R.  3  H.  L  55,  were  Lords 
Chelmsford  and  Colonsay.  Lord  Chelmsford  did  not  express  any  opin- 
ion upon  the  subject  of  matrimonial  domicil.  Lord  Colonsay  rested 
his  judgment  upon  the  fact  that  the  spouses  had  resorted  to  Scot- 
land for  the  very  purpose  of  committing  a  fraud  upon  the  law  of 
their  English  domicil;  but  he  did  indicate  an  opinion  that,  in  the  ab- 
sence of  such  fraudulent  purpose,  they  might  possibly  have  obtained 
a  divorce  in  Scotland,  after  a  residence  in  that  country  which  was 
insufficient  to  change  their  domicil  of  succession. 

Their  Lordships  have  in  these  circumstances,  and  upon  these  con- 
siderations, come  to  the  conclusion  that,  according  to  international 
law,  the  domicil  for  the  time  being  of  the  married  pair  affords  the 
only  true  test  of  jurisdiction  to  dissolve  their  marriage.  They  con- 
cur, without  reservation,  in  the  views  expressed  by  Lord  Penzance  in 
Wilson- V.  Wilson,  L.  R.  2  P.  &  D.  442,  which  were  obviously  meant 
to  refer,  not  to  questions  arising  in  regard  to  the  mutual  riglfts  of 
married  persons,  but  to  jurisdiction  in  the  matter  of  divorce:  "It  is 
the  strong  inclination  of  my  own  opinion  that  the  only  fair  and  satis- 
factory rule  to  adopt  on  this  matter  of  jurisdiction  is  to  insist  upon 
the  parties  in  all  cases  referring  their  matrimonial  differences  to  the 
Courts  of  the  country  in  which  they  are  domiciled.  Different  com- 
munities have  different  views  and  laws  respecting  matrimonial  obli- 
gations, and  a  different  estimate  of  the  causes  which  should  justify 
divorce.  It  is  both  just  and  reasonable,  therefore,  that  the  differences 
of  married  people  should  be  adjusted  in  accordance  with  the  laws 
of  the  community  to  which  they  belong,  and  dealt  with  by  the  tribunals 
which  alone  can  administer  those  laws.  An  honest  adherence  to  this 
principle,  moreover,  will  preclude  the  scandal  which  arises  when  a 
man  and  woman  are  held  to  be  man  and  wife  in  one  country  and 
strangers  in  another." 

Their  Lordships  will,  therefore,  hvmibly  advise  Her  Majesty  to  af- 
firm the  order  appealed  from.  The  appellant  must  pay  to  the  first  and 
fourth  respondents  their  costs  of  this  appeal.^^ 

17  See,  also,  Bater  v.  Eater,  75  L.  J.  P.  (1906). 

The  children  of  a  man'iage  entered  into  by  a  woman  snbsequent  to  a  divorce 
obtained  in  a  jurisdiction  which  is  not  'internationally  competent  have  been 
held  to  be  illesitiniate  notwithstanding  such  marriage  was  valid  under  the 
lex  loci  celebrationis  and  the  personal  law  of  the  second  husband.  Shaw  v. 
Gould,  L.  R.  1868,  3  Eng.  &  Ir.  App.  55. 

In  England  a  wife  is  held  incapable  of  establishing  a  separate  domicile 
from  that  of  her  husband,  even  for  the  purpose  of  divorce.  Dolphin  v.  Robins, 
[1859]  7  H.  L.  Gas.  390.  But  it  seems  that  the  English  courts  will  take 
jurisdiction  at  the  instance  of  a  wife  deserted  by  her  husband,  who,  up  to 
the  time  of  such  desertion,  was  domiciled  in  England.  See  Armjtage  v. 
Armytage,  [1898]  P.  178;    Ogdcn  v.  Ogden,  [1908]  P.  78. 


Ch.  3) 


FAMILY  LAW. 


ANDREWS  V.  ANDREWS.  ^^^  , 

S.  14,  23  Sup.  Ct.  237,  47 


(Supreme  Court  of  the  United  States,  1903.     188  U 

L.  Ed.  3G6.) 


Error  to  the  Supreme  Judicial  Court  of  the  State  of  Massachusetts. 

Charles  S.  Andrews,  a  citizen  of  Massachusetts,  went  to  South  Da- 
kota in  order  to  obtain  a  divorce  from  Kate  H.  Andrews,  his  wife. 
The  divorce  was  granted  on  the  ground  of  desertion,  a  cause  which 
occurred  in  Massachusetts  while  the  parties  resided  there,  and  which 
would  not  authorize  a  divorce  by  the  laws  of  Massachusetts. 

His  wife,  through  her  attorney,  consented  to  the  granting  of  the 
decree. 

A  day  or  two  after  the  rendering  of  the  decree  Andrews  returned 
to  Massachusetts  where  he  married  Annie  Andrews  and  where  he 
continued  to  reside  until  his  death,  in  October,  1897.  Both  Kate  H. 
Andrews  and  Annie  Andrews  petitioned  to  be  appointed  administra- 
trix of  his  estate.  The  Supreme  Judicial  Court  of  Massachusetts  held 
that  Andrews  had  never  obtained  a  bona  fide  domicil  in  South  Dakota 
and  that  the  decree  of  divorce  would  therefore  not  be  recognized  un- 
der section  35,  2  Rev.  Laws  Mass.  1902,  c.  152,  p.  1357,  which  pro- 
vides as  follows :  "A  divorce  decreed  in  another  state  or  country  accord- 
ing to  the  laws  thereof  by  a  court  having  jurisdiction  of  the  cause  and 
both  the  bodies,  shall  be  valid  and  effectual  in  this  commonwealth; 
but  if  an  inhabitant  of  this  commonwealth  goes  into  another  state  or 
country  to  obtain  a  divorce  for  a  cause  which  occurred  here,  while  the 
parties  resided  here,  or  for  a  cause  which  would  not  authorize  a  di- 
vorce by  the  laws  of  this  commonwealth,  a  divorce  so  obtained  shall 
be  of  no  force  or  effect  in  this  commonwealth."  176  Mass.  92,  57  N. 
E.  333.  Kate  H.  Andrews  was  declared  to  be  the  widow  of  Charles 
S.  Andrews  and  to  be  entitled  to  the  administration  of  his  estate. ^^ 

White,  J.^^  *  *  *  /^s  the  state  of  Massachusetts  had_excju- 
sive  jurisdiction  over  its  citizens  concerning  the  marriage  tie  and  its 
dissolution,  and  consequentIy"tBe~authority  to  'prohibit  them  from 
p e rpetratmg  a  traud  upon  the  law  of  their  domi^il_byLtenTporarily  so- 
journing in  another  "state,  and  there,  without  acquiring  a  bona  fije 
dormcTT^  procuring  a  decree  of  divorce,  it  follows  that  the  South  D^- 
kota  decree  relied  upon  wasrendered  by  a  cotirt  without  jurisdiction, 
and  henceThe  due  "faith  and  credit  clause  of  the  Constitution  of  the 
United ^tates_did_nof"  require  the_enforcemient  of  such  decree  in  the 
state  of  Massachusetts,  against  the  public  policy  of  that  state  as  esr 
pressed  in  its  statutes.  Indeed,  this  application  of  the  general  principle 
is  not  dpen~Eo~clispute,  since  it  has  been  directly  sustained  by  decisions 
of  this  court.     Bell  v.  Bell,  181  U.  S.  175,  21  Sup.  Ct.  551,  45  L.  Ed.  804 ; 


18  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 

19  Portions  of  the  opinion  have  been  omitted. 


542 


PARTICULAR  SUBJECTS. 


(Part  2 


Streitwolf  v.  Streitwolf,  181  U.  S.  179,  21  Sup.  Ct.  553,  45  L.  Ed. 
807.  In  each  of  these  cases  it  was  sought  in  one  state  to  enforce  a 
decree  of  divorce  rendered  in  another  state,  and  the  authority  of  the 
due  faith  and  credit  clause  of  the  Constitution  was  invoked  for  that 
purpose.  It  having  been  estabhshed  in  each  case  that  at  the  time  the 
divorce  proceedings  were  commenced,  the  plaintiff  in  the  proceedings 
had  no  bona  fide  domicil  within  the  state  where  the  decree  of  divorce 
was  rendered,  it  was  held,  applying  the  principle  announced  in  Thomp- 
son V.  Whitman,  18  Wall.  457,  21  L.  Ed.  897,  that  the  question  of 
jurisdiction  was  open  for  consideration,  and  that,  as,  in  any  event, 
domicil  was  essential  to  confer  jurisdiction,  the  due  faith  and  credit 
clause  did  not  require  recognition  of  such  decree  outside  of  the  state 
•in  which  it  had  been  rendered.  A  like  rule,  by  inverse  reasoning,  was 
also  applied  in  the  case  of  Atherton  v.  Atherton,  181  U.  S.  155,  21 
Sup.  Ct.  544,  45  L.  Ed.  794.  There,  a  decree  of  divorce  was  rendered 
in  Kentucky  in  favor  of  a  husband  who  had  commenced  proceedings 
in  Kentucky  against  his  wife,  then  a  resident  of  the  state  of  New  York. 
The  courts  of  the  latter  state  having,  in  substance,  refused  to  give 
effect  to  the  Kentucky  divorce,  the  question  whether  such  refusal  con- 
stituted a  violation  of  the  due  faith  and  credit  clause  of  the  Constitu- 
tion was  brought  to  this  court  for  decision.  It  having  been  estab^ 
lished  that  Kentucky  was  the  domicil  of  the  husband  and  had  ever 
been  the  matrimonial  domicil,  and,  therefore,  that  the  courts  of  Ken- 
tucky had  jurisdiction  over  the  subject-matter,  it  was  held  that  the 
due  faith  and  credit  clause  of  the  Constitution  of  the  United  States 
imposed  upon  the  courts  of  New  York  the  duty  of  giving  effect  to 
the  decree  of  divorce  which  had  been  rendered  in  Kentucky,  *  *  * 
Nor  is  there  force  in  the  suggestion  that  because,  in  the  case  before 


us,  the  wife  appeared,  hence  the  South  Dakota-CQUj±  had  JiirisdictioiT 
to  decree  the_divorcer~~The  corTfention  stated  must  rest  on  the  prerrb 
ise  that  the  aAithority  ot  tlie~court  depended_on_the_jippearance  of  the 
parfiesT anjlZnaL  on  its  lurisdiction  over  the  subject-matter — that  is, 
bona  fT3e  domicil,  irrespective  ofthe  appearance  of  the  parties.  Here 
agaifPtlie  argunTgiit,  if  •-SusfariTeH7~would  involve  the  overruling  of 
Bell  v.  Bell  and  Streitwolf  v.  Streitwolf.  As,  in  each  of  the  cases, 
jurisdiction  was  conferred,  as  far  as  it  could  be  given,  by  the  appear- 
ance of  the  plaintiff  who  brought  the  suit,  it  follows  that  the  decision 
that  there  was  no  jurisdiction  because  of  the  want  of  bona  fide  domicil 
was  a  ruling  that,  in  its  absence,  there  could  be  no  jurisdiction  over 
the   subject-matter,   irrespective  of   the   appearance  of  the   party  by 

^whom  the  suit  was  brought.  But  it  is  obvious  that  the  inadequacy 
of  the  appearance  or  consent  of  one  person  to  confer  jurisdiction  over 
a  subject-matter  not  resting  on  consent  includes,  necessarily,  the  want 
of  power  of  both  parties  to  endow  the  court  with  jurisdiction  over 
a  subject-matter,  which  appearance  or  consent  could  not  give.  In- 
deed, the  argument  but  ignores  the  nature  of  the  marriage  contract 

and  the  legislative  control  over  its  dissolution  which  was  pointed  out 


Ch.    3)  FAMILY  LAW.  543 

at  the  outset.     The  principle  dominating  the  subjectis  that  the  mar- 


riage relation  is^so  infer w oven  wrtli  pubHc  policy  tliatJlEe  consent. 
the  parties  is  impotent  to  dissolveit  rr^n^^^ry  tn  thp  In^v  nf  the  rlomi-^ 
cHy  The  propotiitTonrelied  upon,  if  maintained,  would  involve  this 
contradiction  in  terms :  That  marriage  may  not  be  dissolved  by  the 
consent  of  the  parties,  but  that  they  can,  by  their  consent,  accomplish 
the  dissolution  of  the  marriage  tie  by  appearing  in  a  court  foreign  to 
their  domicil  and  wholly  wanting  in  jurisdiction,  and  may  subsequently 
compel  the  courts  of  the  domicil  to  give  effect  to  such  judgment  de- 
spite the  prohibitions  of  the  law  of  the  domicil  and  the  rule  of  public 
policy  by  which  it  is  enforced. 

Although  it  is  not  essential  to  the  question  before  us,  which  calls 
upon  us  only  to  determine  whether  the  decree  of  divorce  rendered, 
in  South  Dakota  was  entitled  to  extraterritorial  effect,  we  observe,  in 
passing,  that  the  statute  of  South  Dakota  made  domicil,  and  not  mere 
residence,  the  basis  of  divorce  proceedings  in  that  state.  As,  without 
reference  to  the  statute  of  South  Dakota  and  in  any  event,  domicil 
in  that  state  was  essential  to  give  jurisdiction  to  the  courts  of  such 
state  to  render  a  decree  of  divorce  which  would  have  extraterritorial 
effect,  and  as  the  appearance  of  one  or  both  of  the  parties  to  a  divorce 
proceeding  could  not  suffice  to  confer  jurisdiction  over  the  subject- 
matter,  where  it  was  wanting  because  of  the  absence  of  domicil  within 
the  state,  we  conclude  that  no  violation  of  the  due  faith  and  credit 
clause  of  the  Constitution  of  the  United  States  arose  from  the  action 
of  the  supreme  judicial  court  of  Massachusetts  in  obeying  the  com- 
mand of  the  state  statute,  and  refusing  to  give  effect  to  the  decree  of 
divorce  in  question.    Affirmed.^** 


ATHERTON  v.  ATHERTON. 

(Supreme  Court  of  the  United  States,  1901.     ISl  U.  S.  155,  21  Sup.  Ct  544, 

45  L.  Ed.  794.) 

This  was  a  suit  brought  in  the  Supreme  Court  of  the  State  of  New 
York  by  Mary  G.  Atherton  against  Peter  Lee  Atherton  for  a  divorce 
from  bed  and  board  on  the  ground  of  cruel  and  abusive  treatment. 
The  defendant  appeared  in  the  case.  The  court  found  the  following 
facts :  The  parties  were  married  at  Clinton,  New  York,  in  1888,  plain- 
tiff being  a  resident  of  that  place,  and  defendant  a  resident  of  Louis- 

20  Brewer,  Shiras,  and  Peckham.  J.T..  dissented.     Holmes,  J.,  did  not  sit. 

As  to  character  of  residence  essential  to  give  jurisdiction  in  divorce  pro- 
ceedings, see  12  L.  R.  A.  (N.  S.)  1100-110.3. 

The  party  procuring  the  divorce,  having  submitted  to  the  jurisdiction  of 
the  court,  cannot  question  the  validity  of  the  decree  in  another  state.  In  ra 
Ellis'  Estate,  55  Minn.  401,  56  N.  W.  1056,  23  L.  R.  A.  287.  43  Am.  St.  Rep. 
514  (1893) ;  Starbuck  v.  Starbuck.  173  N.  T.  503.  66  X.  E,  193,  93  Am.  St.  Kep. 
631  (1903) ;  Bledsoe  v.  Seaman  (Kan.)  95  Pac.  576  (190S). 


544  PARTICULAR  SUBJECTS.  (Part  2 

ville,  Ky.  Immediately  after  the  marriage  the  parties  went  to  and 
resided  at  Louisville,  Ky.,  and  continued  to  reside  there  as  husband 
and  wife  until  1891.  Then,  owing  to  his  cruel  and  abusive  treatment, 
without  fault  on  her  part,  she  left  him  with  the  intention  of  not  re- 
turning to  the  state  of  Kentucky  and  went  to  reside  with  her  mother 
at  Clinton,  N.  Y.,  and  was  domiciled  in  the  state  of  New  York. 

The  defendant,  in  his  answer,  besides  denying  the  cruelty  charge, 
set  up  a  decree  of  divorce  from  the  bonds  of  matrimony  obtained  by 
him  against  his  wife  in  the  state  of  Kentucky,  on  the  ground  that  she, 
without  fault  upon  his  part,  had  abandoned  him.  She  was  not  served 
personally  in  the  Kentucky  suit,  nor  did  she  appear  therein,  but  no- 
tice of  the  proceedings  had  been  sent  to  her  in  New  York  pursuant 
to  the  statutes  of  Kentucky. 

The  court  decided  that  the  decree  of  the  Kentucky  court  was  in- 
operative and  void  as  against  the  wife  and  no  bar  to  the  present  ac- 
tion and  gave  judgment  in  her  favor.  This  judgment  was  affirmed 
by  the  Court  of  Appeals  of  the  state  (155  N.  Y.  129,  49  N.  E.  933, 
40  L.  R.  A.  291,  63  Am.  St.  Rep.  650).  Defendant  sued  out  a  writ 
of  error  on  the  ground  that  the  New  York  courts  had  failed  to  give 
full  faith  and  credit  to  the  Kentucky  decree,  as  required  by  the  United 
States  Constitution. 

Gray,  J.^^  *  *  *  There  can  be  no  doubt  that  this  decree  was 
by  law  and  usage  entitled  to  full  faith  and  credit  as  an  absolute  de- 
cree of  divorce  in  the  state  of  Kentucky.  The  court  of  appeals  of  that 
state  Jias  held  that,  under  its  statutes,  a  wife  residing  in  the  state  was 
entitled  to  obtain  a  decree  of  divorce  against  a  husband  who  had 
left  the  state,  or  who  had  never  been  within  it ;  and  Chief  Justice 
Robertson  said :  "It  would  be  a  reproach  to  our  legislation  if  a  faith- 
less husband  in  Kentucky  could,  by  leaving  the  state,  deprive  his 
abandoned  wife  of  a  power  of  obtaining  a  divorce  at  home."  Rhyms 
V.  Rhyms  (1870)  7  Bush,  316;  Perzel  v.  Perzel  (1891)  91  Ky.  634, 
15  S.  W.  658.  That  court  has  recognized  that  the  regulation  of  di- 
vorce belongs  to  the  legislature  of  the  domicil  of  the  parties.  Maguire 
v.  Maguire  (1838)  7  Dana,  181,  185-187.  And  the  same  court,  where 
husband  and  wife  had  lived  together  in  Kentucky,  and  she  abandoned 
him,  and  he  became  a  bona  fide  citizen  of  Indiana,  held  that  a  divorce 
from  the  bonds  of  matrimony,  obtained  by  him  against  the  wife  in 
that  state,  by  proceedings  on  constructive  service  and  according  to 
the  laws  of  that  state,  determined  the  status  of  the  parties  in  Kentucky. 
Hawkins  v.  Ragsdale  (1882)  80  Ky.  353,  44  Am.  Rep.  483. 

There  is  a  weight  of  authority  in  accord  with  the  views  maintained 
by  the  court  of  appeals  of  Kentucky,  although  there  are  some  deci- 
sions of  learned  courts  to  the  contrary. 

The  purpose  and  effect  of  a  decree  of  divorce  from  the  bond  of 
matrimony  by  a  court  of  competent  jurisdiction  are  to  change  the 

2iA  part  of  the  opinion  lias  l)een  omitted. 


Ch.    3)  FAMILY  LAW. 


545 


existing  status  or  domestic  relation  of  husband  and  wife,  and  to  free 
them  both  from  the  bond.  The  marriage  tie,  when  thus  severed  as 
to  one  party,  ceases  to  bind  either.  A  husband  without  a  wife,  or  a 
wife  without  a  husband,  is  unknown  to  the  law.  When  the  law  pro- 
vides, in  the  nature  of  a  penalty,  that  the  guilty  party  shall  not  marry 
again,  that  party,  as  well  as  the  other,  is  still  absolutely  freed  from 
the  bond  of  the  former  marriage. 

The  rule  as  to  the  notice  necessary  to  give  full  effect  to  a  decree 
of  divorce  is  different  from  that  which  is  required  in  suits  in  per- 


sonam. 


In  Ditson  v.  Ditson  (1856)  4  R.  I.  87  (of  which  Judge  Cooley,  in 
his  Treatise  on  Constitutional  Limitations,  403,  note,  says  there  is  no 
case  in  the  books  more  full  and  satisfactory  upon  the  whole  subject 
of  jurisdiction  in  divorce  suits),  the  supreme  court  of  Rhode  Island, 
in  an  elaborate  opinion  by  Chief  Justice  Ames,  affirmed  its  jurisdic- 
tion, upon  constructive  notice  by  publication,  to  grant  a  divorce  to  a 
wife  domiciled  in  Rhode  Island  against  a  husband  who  had  never 
been  in  Rhode  Island,  and  whose'  place  of  residence  was  unknown ; 
and  said :  "It  is  obvious  that  marriage,  as  a  domestic  relation,  emerged 
from  the  contract  which  created  it,  is  known  and  recognized  as  such 
throughout  the  civilized  world;  that  it  gives  rights  and  imposes  du- 
ties and  restrictions  upon  the  parties  to  it,  affecting  their  social  and 
moral  condition,  of  the  measure  of  which  every  civilized  state,  and 
certainly  every  state  of  this  Union,  is  the  sole  judge,  so  far  as  its  owr. 
citizens  or  subjects  are  concerned,  and  should  be  so  deemed  by  other 
civilized  and  especially  sister  states ;  that  a  state  cannot  be  deprived, 
directly  or  indirectly,  of  its  sovereign  power  to  regulate  the  status 
of  its  own  domiciled  subjects  and  citizens,  by  the  fact  that  the  sub- 
jects and  citizens  of  other  states,  as  related  to  them,  are  interested 
in  that  status ;  and  in  such  a  matter  has  a  right,  under  the  general 
law,  judicially  to  deal  with  and  modify  or  dissolve  this  relation,  bind- 
ing both  parties  to  it  by  the  decree,  by  virtue  of  its  inherent  power 
over  its  own  citizens  and  subjects,  and  to  enable  it  to  answer  their 
obligatory  demands  for  justice;  and  finally,  that  in  the  exercise  of  this 
judicial  power,  and  in  order  to  the  validity  of  a  decree  of  di\orce, 
whether  a  mensa  et  thoro  or  a  vinculo  matrimonii,  the  general  law 
does  not  deprive  a  state  of  its  proper  jurisdiction  over  the  condition 
of  its  own  citizens,  because  nonresidents,  foreigners,  or  domiciled  in- 
habitants of  other  states  have  not  or  will  not  become,  and  cannot  be 
made  to  become,  personally  subject  to  the  jurisdiction  of  its  courts; 
but,  upon  the  most  familiar  principles,  and  as  illustrated  by  the  mos*- 
familiar  analogies  of  general  law,  its  courts  may  and  can  act  conclu- 
sively in  such  a  matter  upon  the  rights  and  interests  of  such  persons 
giving  to  them  such  notice,  actual  or  constructive,  as  the  nature  of 
the  case  admits  of,  and  the  practice  of  courts  in  similar  cases  ."^auc- 
tions." 4  R.  I.  105,  106.  *  *  * 
LoR.CoNF.L.— 35 


546  PARTICULAR  SUBJECTS.  (Part  2 

In  a  very  recent  case,  the  Court  of  Errors  and  Appeals  of  New 
Jersey  maintained  the  vaHdity  of  a  divorce  obtained  in  the  state  of 
Utah  by  a  husband  having  his  bona  fide  domicil  there,  against  a  wife 
whose  domicil  was  in  New  Jersey,  after  publication  of  the  process 
and  complaint  in  accordance  with  the  statutes  of  Utah,  and  personal 
service  upon  the  wife  in  New  Jersey  in  time  to  enable  her  to  make 
defense,  if  she  wished  to  do  so.  Mr.  Justice  Gummere,  speaking  for 
the  Court  of  Errors  and  Appeals,  said  that,  at  least  "interstate  comity 
requires  that  a  'decree  of  divorce,  pronounced  by  a  court  of  the  state 
in  which  the  complainant  is  domiciled,  and  which  has  jurisdiction  of 
the  subject-matter  of  the  suit,  shall,  in  the  absence  of  fraud,  be  given 
full  force  and  effect  within  the  jurisdiction  of  a  sister  state,  notwith- 
standing that  the  defendant  does  not  reside  within  the  jurisdiction  of 
the  court  which  pronounced  the  decree,  and  has  not  been  served  with 
process  therein;  provided  that  a  substituted  service  has  been  made 
in  accordance  with  the  provisions  of  the  statute  of  that  state,  and  that 
actual  notice  of  the  pendency  of  the  suit  has  been  given  to  the  de- 
fendant, and  a  reasonable  opportunity  afforded  to  put  in  a  defense 
thereto;  and  provided,  further,  that  the  ground  upon  which  the 
decree  rests  is  one  which  the  public  policy  of  the  state  in  which  it  is 
sought  to  be  enforced  recognizes  as  a  sufficient  cause  for  divorce." 
Felt  V.  Felt  (1899)  59  N.  J.  Eq.  606,  45  Atl.  105,  49  Atl.  lOri,  47 
E.  R.  A.  546,  83  Am.  St.  Rep.  612. 

In  New  York,  North  Carolina,  and  South  Carolina,  the  opposite 
view  has  prevailed,  either  upon  the  ground  that  the  rule  as  to  notice 
is  the  same  in  suits  for  divorce  as  in  ordinary  suits  in  personam,  or 
upon  the  ground  that,  in  the  absence  of  actual  notice  or  appearance, 
the  decree,  while  it  may  release  the  libellant,  cannot  release  the  libellee 
from  the  bond  of  matrimony.  People  v.  Baker  (1879)  76  N.  Y.  78,  32 
Am.  Rep.  274;  O'Dea  v.  O'Dea  (1885)  101  N.  Y.  23,  4  N.  E.  110 ;  Re 
Kimball  (1898)  155  N.  Y.  62,  49  N.  E.  331;  Irby  v.  Wilson  (1837)  21 
N.  C.  568;  McCreery  v.  Davis  (1894)  44  S.  C.  195,  22  S.  E.  178, 
28  L.  R.  A.  655,  51  Am.  St.  Rep.  794. 

In  People  v.  Baker,  76  N.  Y.  78,  32  Am.  Rep.  274,  upon  which  the 
subsequent  decisions  in  New  York  are  based,  the  defendant  was  mar- 
ried to  a  woman  in  the  state  of  Ohio;  they  afterwards  lived  together 
in  the  state  of  New  York;  the  wife,  upon  notice  by  publication,  and 
without  personal  appearance  of  the  husband,  he  being  in  New  York, 
obtained  a  decree  of  divorce  against  him  in  Ohio;  and  he  afterwards 
married  another  woman  in  New  York,  and  was  convicted  of  bigamy 
there.  The  conviction  was  affirmed  by  the  court  of  appeals,  without 
a  suggestion  that  the  first  wife  was  not  domiciled  in  Ohio  at  the  time 
of  the  divorce,  but  stating  the  question  in  the  case  to  be :  "Can  a  court, 
in  another  state,  adjudge  to  be  dissolved  and  at  an  end  the  matri- 
monial relation  of  a  citizen  of  this  state,  domiciled  and  actually  abid- 
ing here  throughout  the  pendency  of  the  judicial  proceedings  there, 
without  a  voluntary  appearance  by  him  therein,  and  with  no  actual 


Ch.    3)  .  FAMILY   LAW.  547 

notice  to  him  thereof,  and  without  personal  service  of  process  on  him 
in  that  state?"  The  court  admitted  that  "if  one  party  to  a  proceed- 
ing is  domiciled  in  a  state,  the  status  of  that  party,  as  affected  by  the 
matrimonial  relation,  may  be  adjudged  upon  and  confirmed  or  changed 
in  accordance  with  the  laws  of  that  state;"  but  held  that,  without 
personal  appearance  or  actual  notice,  the  decree  could  not  aft"ect  the 
matrimonial  relation  of  the  defendant  in  another  state.  The  court 
recognized  that  the  law  was  settled  otherwise  in  some  states,  and  said : 
"It  remains  for  the  Supreme  Court  of  the  United  States,  as  the  final 
arbiter,  to  determine  how  far  a  judgment  rendered  in  such  a  case, 
upon  such  substituted  service  of  process,  shall  be  operative  without 
the  territorial  jurisdiction  of  the  tribunal  giving  it." 

The  authorities  above  cited  show  the  wide  diversity  of  opinion 
existing  upon  this  important  subject,  and  admonish  us  to  confine  our 
decision  to  the  exact  case  before  us. 

This  case  does  not  involve  the  validity  of  a  divorce  granted.  on_ 
constructive  service^jy  the  coutTt>t  a  stated  which  only  one  of  the 
parties  ever  had  a  domicil_L^ior  the  question  to  ^what  extent  the  good 
faith  of  the_domicil  may  be  afterwards  inquired  into.  In  this  case, 
the  divorce  in  Kentucky  was  by  the  court  of  the  state  which  had  al- 
ways""^en  tne  undoubted  domicjl_of  the  husband^_andwhich  was  the" 
only  matrmionial  domiciljDf  the  hiisband  and  wife.  The  smgle  qijes- 
tion  to  be  decided  is  jthe_yalidit^_ofthat  divorce^^  granted  aftej^such 
notice  had  been  givenaswas  required  bv  ths-Statutes  of  Kentuc^cv. 

The  tnisband  always  had  his  domicil  in  Kentucky,  and  the  matri- 
monial domicil  of  the  parties  was  in  Kentucky,  On  December  28, 
1892,  the  husband  filed  his  petition  for  a  divorce  in  the  court  of  appro- 
priate jurisdiction  in  Kentucky,  alleging  an  abandonment  of  him  by 
the  wife  in  Kentucky,  and  a  continuance  of  that  abandonment  for  a 
year,  which  was  a  cause  of  divorce  by  the  laws  of  Kentucky.  His  pe- 
tition truly  stated,  upon  oath,  as  required  by  the  statutes  of  Kentucky, 
that  the  wife  might  be  found  at  Clinton  in  the  state  of  New  York,  and 
that  at  Clinton  was  the  postoffice  nearest  the  place  where  she  might 
be  found.  As  required  by  the  statutes  of  Kentucky,  the  clerk  there- 
upon entered  a  warning  order  to  the  wife  to  appear  in  sixty  days,  and 
appointed  an  attorney  at  law  to  represent  her.  The  attorney,  on  Janu- 
ary 5,  1893,  wrote  to  the  wife  at  Clinton,  fully  advising  her  of  the 
object  of  the  petition  for  divorce,  and  inclosing  a  copy  thereof  in  a 
letter  addressed  to  her  by  mail  at  Clinton,  and  having  printed  on  the 
envelope  a  direction  to  return  it  to  him,  if  not  delivered  in  ten  days. 
There  is  a  presumption  of  fact,  though  not  of  law,  that  a  letter  put 
into  the  postoffice,  and  properly  addressed,  is  received  by  the  person 
to  whom  it  is  addressed.  Rosenthal  v.  Walker  (1884)  111  U.  S.  185, 
4  Sup.  Ct.  383,  28  L.  Ed.  395.  On  February  6,  1893,  the  attorney, 
haying  received  no  answer,  made  his  report  to  the  court.  And  on 
March  14,  1893,  the  court,  after  taking  evidence,  granted  the  husband 
an  absolute  decree  of  divorce  for  his  wife's  abandonment  of  him. 


548  PARTICULAR  SUBJECTS.  (Part  2 

The  court  of  New  York  has  indeed  found  that  the  wife  "was  not 
personally  served  with  process  within  the  state  of  Kentucky,  or  at  all." 
It  may  be  doubted  whether  this  negatives  her  having  received  or  had 
knowledge  of  the  letter  sent  to  her  by  the  attorney  in  Kentucky,  Janu- 
ary 5,  1893,  six  days  before  she  began  her  suit  in  New  York.  But 
assuming  that  it  does,  the  question  in  this  case  is  not  whether  she  had 
actual  notice  of  the  proceedings  for  divorce,  but  whether  such  reason- 
able steps  had  been  taken  to  give  her  notice  as  to  bind  her  by  the  de- 
cree in  the  state  of  the  domicil. 

The  court  in  New  York  found  that  the  wife  left  the  husband  and 
went  to  Clinton  with  the  purpose  and  intention  of  not  returning  to 
the  state  of  Kentucky,  but  of  permanently  residing  in  the  state  of 
New  York;  and  that  this  purpose  and  intention  were  understood  by 
the  husband  at  the  time,  and  were  contemplated  and  evidenced  by 
the  agreement  executed  by  the  parties  in  Kentucky,  October  10,  1891. 
But  that  agreement  was  among  the  proofs  submitted  to  the  court  in 
Kentucky,  and  may  well  have  been  considered  by  that  court,  as  the 
preamble  to  the  agreement  states,  as  simply  intended  to  provide  for  the 
interest  of  their  child,  recognizing  that  the  parties  had  ceased  to  live 
together  as  husband  and  wife,  but  "without  in  any  way  acknowledging 
upon  whom  is  the  fault,  or  condoning  the  conduct  of  the  one  or  the 
other  which  has  led  to  the  existing  state  of  affairs,  or  preventing  any 
consequences  which  may  follow,  or  right  which  may  arise  to  either 
party  if  such  status  shall  continue."  The  agreement  contains  no  men- 
tion of  the  domicil  of  either  husband  or  wife,  but  declares  that  the 
domicil  of  the  child  is  to  be  the  state  of  Kentucky,  and  is  taken  up 
with  providing  that  its  custody  shall  be  half  of  each  year  with  the 
mother  and  the  other  half  with  the  paternal  grandmother,  and  with 
providing  for  the  support  and  custody  of  the  child  in  various  future 
contingencies,  including  the  divorce  and  second  marriage  of  the  hus- 
band or  of  the  wife. 

We  are  of  opinion_that  the  undisputedjact'^  shnw  that  such  efforts 
were  required  by  the  statutes  of  Kentucky,  and_  were  actually  maTIe", 
to  give  the  \yife_actual  notice  ot  the  suit  in  KeJitiicky^  as  to  make__tl}e 
decree  of  the  court  there,  granting  a  divorce  upon  the^round  that  she 
had  abandonedTEer  husT>and,  as  binding  on  her  as  if  she  haH  hpp^  <iprv- 
ed^witH~notice~i_ir!Kentucky,  or  Had  voluntarily  appeared  in  the  suit. 
Binding  her  to  that  full  extent,  it  established,  bevond  contradiction.. 
that~slTe  TiafraBandoned^  tief  iiusTSand,  and  precludes  her  from  assertr 
ing That  slic  left  him  nn  account  of  his  cruel  treatment 

To  hold  otherwise  would  make  it  difficult,  if  not  impossible,  for  the 
husband  to  obtain  a  divorce  for  the  cause  alleged,  if  it  actually  existed. 
The  wife  not  being  within  the  state  of  Kentucky,  if  constructive  no- 
tice, with  all  the  precautions  prescribed  by  the  statutes  of  that  state, 
were  insufficient  to  bind  her  by  a  decree  dissolving  the  bond  of  matri- 
mony, the  husband  could  only  get  a  divorce  by  suing  in  the  state  in 
which  she  was  found;    and  by  the  very  fact  of  suing  her  there  he 


rt  E.  StCr 


Ch.    3)  "     FAMILY   LAW.  549 

would  admit  that  she  had  acquired  a  separate  domicil  (which  he  de- 
nied), and  would  disprove  his  own  ground  of  action,  that  she  had 
abandoned  him  in  Kentucky. 

The  result  is  that  the  courts  of  New  York  have  not  given  to  the 
Kentucky  decree  of  divorce  the  faith  and  credit  which  it  had  by  law 
in  Kentucky,  and  that  therefore  their — 

Judgments  must  be  reversed,  and  the  case  remanded  to  the  Supreme 
Court  of  New  York  for  further  proceedings  not  inconsistent  with  this 
opinion.^* 


HADDOCK  v.  HADDOCK. 

(Supreme  Court  of  the  United  States,  1906.    201  U.  S.  562.  26  Sup.  Ct.  525.  50 

L.  Ed.  867.) 

White,  J.-^  The  plaintiff  in  error  will  be  called  the  husband  and 
the  defendant  in  error  the  wife. 

The  wife,  a  resident  of  the  state  of  New  York,  sued  the  husband  in 
that  state  in  1899,  and  there  obtained  personal  service  upon  him. 
The  complaint  charged  that  the  parties  had  been  married  in  New  York 
in -1868,  where  they  both  resided  and  where  the  wife  continued  to  re- 
side, and  it  was  averred  that  the  husband,  immediately  following  the 
marriage,  abandoned  the  wife,  and  thereafter  failed  to  support  her. 
and  that  he  was  the  owner  of  property.  A  decree  of  separation  from 
bed  and  board  and  for  alimony  was  prayed.  The  answer  admitted  the 
marriage,  but  averred  that  its  celebration  was  procured  by  the  fraud 
of  the  wife,  and  that  immediately  after  the  marriage  the  parties  had 
separated  by  mutual  consent.  It  was  also  alleged  that  during  the 
long  period  between  the  celebration  and  the  bringing  of  this  action 
the  wife  had  in  no  manner  asserted  her  rights,  and  was  barred  by  her 
laches  from  doing  so.  Besides,  the  answer  alleged  that  the  husband 
had,  in  ISB'l,  obtained  in  a  court  of  the  state  of  Connecticut  a  divorce 
which  was  conclusive.  At  the  trial  before  a  referee  the  judgment  roll 
in  the  suit  for  divorce  in  Connecticut  was  offered  by  the  husband  and 
was  objected  to,  first,  because  the  Connecticut  court  had  not  obtained 
jurisdiction  over  the  person  of  the  defendant  wife,  as  the  notice  of  the 
pendency  of  the  petition  was  by  publication  and  she  had  not  appeared 
in  the  action;  and,  second,  because  the  ground  upon  which  the  di- 
vorce was  granted,  viz.,  desertion  by  the  wife,  was  false.  The  ref- 
eree sustained  the  objections  and  an  exception  was  noted.  The  judg- 
ment roll  in  question  was  then  marked  for  identification  and  forms  a 
part  of  the  record  before  us. 

Having  thus  excluded  the  proceedings  in  the  Connecticut  court,  the 
referee  found  that  the  parties  were  married  in  New  York  in  1868,  that 

2  2  The  dissenting  opinion  of  Peckham,  J.,  concurred  in  by  Fuller,  C.  J.,  has 
been  omitted. 

2  3  Part  of  the  opinion  is  omitted. 


550  PARTICULAR  SUBJECTS.  (Part  2 

the  wife  was  a  resident  of  the  state  of  New  York,  that  after  the  mar- 
riage the  parties  never  Hved  together,  and  shortly  thereafter  that  the 
husband,  without  justifiable  cause,  abandoned  the  wife,  and  has  since 
neglected  to  provide  for  her.  The  legal  conclusion  was  that  the  wife 
was  entitled  to  a  separation  from  bed  and  board  and  alimony  in  the 
sum  of  $780  a  year  from  the  date  of  the  judgment.  The  action  of  the 
referee  was  sustained  by  the  supreme  court  of  the  state  of  New  York, 
and  a  judgment  for  separation  and  alimony  was  entered  in  favor  of 
the  wife.  This  judgment  was  affirmed  by  the  court  of  appeals.  As, 
by  the  law  of  the  state  of  New  York,  after  the  affirmance  by  the 
court  of  appeals  the  record  was  remitted  to  the  supreme  court,  this 
writ  of  error  to  that  court  was  prosecuted. 

The  federal  question  is,  Did  the  court  below  violate  the  Consti- 
tution of  the  United  States  by  refusing  to  give  to  the  decree  of  di- 
vorce rendered  in  the  state  of  Connecticut  the  faith  and  credit  to  which 
it  was  entitled? 

As  the  averments  concerning  the  alleged  fraud  in  contracting  the 
marriage  and  the  subsequent  laches  of  the  wife  are  solely  matters  of 
state  cognizance,  we  may  not  allow  them  to  even  indirectly  influence 
our  judgment  upon  the  federal  question  to  which  we  are  confined,  and 
we,  therefore,  put  these  subjects  entirely  out  of  view.  Moreover, 
as,  for  the  purpose  of  the  federal  issue,  we  are  concerned  not  with  the 
mere  form  of  proceeding  by  which  the  federal  right,  if  any,  was  de- 
nied, but  alone  have  power  to  decide  whether  such  right  was  denied, 
we  do  not  inquire  whether  the  New  York  court  should  preferably 
have  admitted  the  record  of  the  Connecticut  divorce  suit,  and,  after 
so  admitting  it,  determined  what  effect  it  would  give  to  it,  instead  of 
excluding  the  record,  and  thus  refusing  to  give  effect  to  the  judgment. 
In  order  to  decide  whether  the  refusal  of  the  court  to  admit  in  evidence 
the  Connecticut  decree  denied  to  that  decree  the  efficacy  to  which  it 
was  entitled  under  the  full  faith  and  credit  clause,  we  must  first  ex- 
amine the  judgment  roll  of  the  Connecticut  cause  in  order  to  fix  the 
precise  circumstances  under  which  the  decree  in  that  cause  was  ren- 
dered. 

Without  going  into  detail,  it  suffices  to  say  that  on  the  face  of  the 
Connecticut  record  it  appeared  that  the  husband,  alleging  that  he  had 
acquired  a  domicil  in  Connecticut,  sued  the  wife  in  that  state  as  a  per- 
son whose  residence  was  imknown,  but  whose  last  known  place  of 
residence  was  in  th*  state  of  New  York,  at  a  place  stated,  and  charged 
desertion  by  the  wire  and  fraud  on  her  part  in  procuring  the  marriage; 
and,  further,  it_  isshown  that  no  service  was  made  upon_  the  wife 
except  by  publication  and  by  mailing  a  copy  of  the  petition  to  her  at 
her  lasf  laiown  place  of  residence  in  the  state  of  New  York. 

With  the  object  of  confining  our  attention  to  the  real  question  aris- 
ing from  this  condition  of  the  Connecticut  record,  we  state  at  the  out- 
set certain  legal  propositions  irrevocably  concluded  by  previous  deci- 


Ch.    3)  FAMILY   LAW.  551 

sions  of  this  court,  and  which  are  required  to  be  borne  in  mind  in 
analyzing-  the  ultimate  issue  to  be  decided. 

First.  The  requirement  of  the  Constitution  is  not  that  some,  but 
that  full,  faith  and  credit  shall  be  given  by  states  to  the  judicial  decrees 
of  other  states.  That  is  to  say,  where  a  decree  rendered  in  one  state  is 
embraced  by  the  full  faith  and  credit  clause,  that  constitutional  pro- 
vision commands  that  the  other  states  shall  give  to  the  decree  the  force 
and  effect  to  which  it  was  entitled  in  the  state  where  rendered.  Hard- 
ing v.  Harding,  198  U.  S.  317,  25  Sup.  Ct.  679,  49  L.  Ed.  10G6. 

Second.  Where  a  personal  judgment  has  been  rendered  in  the  courts 
of  a  state  against  a  nonresident  merely  upon  constructive  service,  and, 
therefore,  M^thout  acquiring  jurisdiction  over  the  person  of  the  defend- 
ant, such  judgment  may  not  be  enforced  in  another  state  in  virtue  of 
the  full  faith  and  credit  clause.  Indeed,  a  personal  judgment  so  ren- 
dered is,  by  operation  of  the  due  process  clause  of  the  14th  Amend- 
ment, void  as  against  the  nonresident,  even  in  the  state  where  render- 
ed; and,  therefore,  such  nonresident,  in  virtue  of  rights  granted  by 
the  Constitution  of  the  United  States,  may  successfully  resist,  even 
in  the  state  where  rendered,  the  enforcement  of  such  a  judgment.  Pen- 
noyer  v.  Neff,  95  U.  S.  714,  24  L.  Ed.  565.     *     *     * 

Third.  The  principles,  however,  stated  in  the  previous  proposition, 
are  controlling  only  as  to  judgm.ents  in  personam,  and  do  not  relate  to 
proceedings  in  rem.  "That  is  to  say,  in  consequence  of  the  authority 
which  government  possesses  over  things  within  its  borders,  there  is 
jurisdiction  in  a  court  of  a  state  by  a  proceeding  in  rem,  after  the 
giving  of  reasonable  opportunity  to  the  owner  to  defend,  to  affect 
things  within  the  jurisdiction  of  the  court,  even  although  jurisdic- 
tion is  not  directly  acquired  over  the  person  of  the  owner  of  the  thing. 
Pennoyer  v.  Neff,  supra. 

Fourth.  The  general  rule  stated  in  the  second  proposition  is,  more- 
over, limited  by  the  inherent  power  which  all  governments  must 
possess  over  the  marriage  relation,  its  formation  and  dissolution,  as 
regards  their  own  citizens.  From  this  exception  it  results  that  where 
a  court  of  one  state,  conformably  to  the  laws  of  such  state,  or  the  state 
through  its  legislative  department,  has  acted  concerning  the  dissolu- 
tion of  the  marriage  tie,  as  to  a  citizen  of  that  state,  such  action  is 
binding  in  that  state  as  to  such  citizen,  and  the  validity  of  the  judg- 
ment may  not  therein  be  questioned  on  the  ground  that  the  action  of 
the  state  in  dealing  with  its  own  citizen  concerning  the  marriage  re- 
lation was  repugnant  to  the  due  process  clause  of  the  Constitution. 
Maynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654.  In 
that  case  the  facts  were  these :  Maynard  was  married  in  Vermont,  and 
the  husband  and  wife  removed  to  Ohio,  from  whence  Maynard  left 
his  wife  and  family  and  went  to  California.  Subsequently  he  acquired 
a  domicil  in  the  territory  of  Washington.  Beiag  there  so  domiciled, 
an  act  of  the  legislature  of  the  territory  was  passed  granting  a  divorce 
to  the  husband.     Maynard  continued  to  reside  in  Washington,  and 


o52  PARTICULAR  SUBJECTS.  (Part  2 

there  remarried  and  died.  The  children  of  the  former  wife,  claiming- 
in  right  of  their  mother,  sued  in  a  court  of  the  territory  of  Washington 
to  recover  real  estate  situated  in  the  territory,  and  one  of  the  issues 
for  decision  was  the  validity  of  the  legislative  divorce  granted  to  the 
father.  The  statute  was  assailed  as  invalid,  on  the  ground  that  Mrs. 
Maynard  had  no  notice,  and  that  she  was  not  a  resident  of  the  terri- 
tory when  the  act  was  passed.  From  a  decree  of  the  supreme  court 
of  the  territory  adverse  to  their  claim -the  children  brought  the  case 
to  this  court.  The  power  of  the  territorial  legislature,  in  the  absence 
of  restrictions  in  the  organic  act,  to  grant  a  divorce  to  a  citizen  of 
the  territory,  was,  however,  upheld,  in  view  of  the  nature  and  extent 
of  the  authority  which  government  possessed  over  the  marriage  rela- 
tion. It  was  therefore  decided  that  the  courts  of  the  territory  commit- 
ted no  error  in  giving  effect  within  the  territory  to  the  divorce  in  ques- 
tion. And  as  a  corollary  of  the  recognized  power  of  a  government  thus 
to  deal  with  its  own  citizen  by  a  decree  which  would  be  operative  with- 
in its  own  borders,  irrespective  of  any  extraterritorial  efficacy,  it  fol- 
lows that  the  right  of  another  sovereignty  exists,  under  principles  of 
comity,  to  give  to  a  decree  so  rendered  such  efficacy  as  to  that  govern- 
ment may  seem  to  be  justified  by  its  conceptions  of  duty  and  public 
policy. 

Fifth.  It  is  no  longer  open  to  question  that  where  husband  and 
wife  are  domiciled  in  a  state  there  exists  jurisdiction  in  such  state,  for 
good  cause,  to  enter  a  decree  of  divorce  which  will  be  entitled  to  en- 
forcement in  another  state  by  virtue  of  the  full  faith  and  credit  clause. 
It  has,  moreover,  been  decided  that  where  a  bona  fide  domicil  has  been 
acquired  in  a  state  by  either  of  the  parties  to  a  marriage,  and  a  suit 
is  brought  by  the  domiciled  party  in  such  state  for  divorce,  the  courts 
of  that  state,  if  they  acquire  personal  jurisdiction  also  of  the  other 
party,  have  authority  to  enter  a  decree  of  divorce,  entitled  to  be  en- 
forced in  every  state  by  the  full  faith  and  credit  clause.  Cheever  v. 
Wilson,  9  Wall.  108,  19  L.  Ed.  604. 

Sixth.  Where  the  domicil  of  matrimony  was  in  a  particular  state, 
and  the  husband  abandons  his  wife  and  goes  into  another  state  in  or- 
der to  avoid  his  marital  obligations,  such  other  state  to  which  the 
husband  has  wrongfully  fled  does  not,  in  the  nature  of  things,  become 
a  new  domicil  of  matrimony,  and,  therefore,  is  not  to  be  treated  as  the 
actual  or  constructive  domicil  of  the  wife;  hence,  the  place  where  the 
wife  was  domiciled  when  so  abandoned  constitutes  her  legal  domicil 
until  a  new  actual  domicil  be  by  her  elsewhere  acquired.  This  was 
clearly  expressed  in  Barber  v.  Barber,  21  How.  582,  16  L.  Ed.  226, 
where  it  was  said  (page  595,  of  21  How.,  16  L.  Ed.  p.  230) : 

"The  general  rule  is,  that  a  voluntary  separation  will  not  give  to  the 
wife  a  different  domiciliation  in  law  from  that  of  her  husband.  But 
if  the  husband,  as  is  the  fact  in  this  case,  abandons  their  domicil  and 
his  wife,  to  get  rid  of  all  those  conjugal  obligations  which  the  marriage 
relation  imposes  upon  him,  neither  giving  to  her  the  necessaries  nor  the 


Ch.    3)  FAMILY  LAW.  553 

comforts  suitable  to  their  condition  and  his  fortune,  and  relinquishes 
altogether  his  marital  control  and  protection,  he  yields  up  that  power 
and  authority  over  her  which  alone  makes  his  domicil  hers." 

And  the  same  doctrine  was  expressly  upheld  in  Cheever  v.  Wilson, 
supra,  where  the  court  said  (9  Wall.  123,  19  L.  Ed.  608) : 

"It  is  insisted  that  Cheever  never  resided  in  Indiana ;  that  the  domi- 
cil of  the  husband  is  the  wife's,  and  that  she  cannot  have  a  dififerent 
one  from  his.  The  converse  of  the  latter  proposition  is  so  well  settled 
that  it  would  be  idle  to  discuss  it.  The  rule  is  that  she  may  acquire 
a  separate  domicil  whenever  it  is  necessary  or  proper  that  she  should 
do  so.  The  right  springs  from  the  necessity  of  its  exercise,  and  en- 
dures as  long  as  the  necessity  continues." 

Seventh.  So  also  it  is  settled  that  whejrejhe  domicil  of  a  husband 
is  in  a  particular  state,  and  that  state  is  also  the  domicil  of  matrimony, 
the  courts^^oF  such  state  having  jurisdiction  over  the  husband  may, 
in  virtue  of  the  duty_of  the  wife  to  be  at  the  matrimonial  domicil,  dis- 
regard an  unjustifiable  absence  therefrom,  and  treat  the  wife  as  hav- 
ing her  domicil  in- the  state  of  the  matrimonial  domicil  for  the  pur- 
pose of  the  dissolution  of  the  marriage,  and  as  a  result  have  power  to 
render  a  judgment  dissolving  the  marriage  which  will  be  binding  upon 
both  parties,  and  will  be  entitled  to  recognition  in  all  other  states  by 
virtue  of  the  full  faith  and  credit  clause.  Atherton  v.  Atherton,  181 
U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794. 

Coming  to  apply  these  settled  propositions  to  the  case  before  us, 
three  things  are  beyond  dispute :  a.  In  view  of  the  authority  which 
government  possesses  over  the  marriage  relation,  no  question  can 
arise  on  this  record  concerning  the  right  of  the  state  of  Connecticut 
within  its  borders  to  give  effect  to  the  decree  of  divorce  rendered  in 
favor  of  the  husband  by  the  courts  of  Connecticut,  he  being  at  the 
time  when  the  decree  was  rendered  domiciled  in  that  state,  b.  As 
New  York  was  the  domicil  of  the  wife  and  the  domicil  of  matrimony, 
from  which  the  husband  fled  in  disregard  of  his  duty,  it  clearly  re- 
sults from  the  sixth  proposition  that  the  domicil  of  the  wife  continued 
in  New  York.  c.  As  then  there  can  be  no  question  that  the  wife  was 
not  constructively  present  in  Connecticut  by  virtue  of  a  matrimonial 
domicil  in  that  state,  and  was  not  there  individually  domiciled,  and  did 
not  appear  in  the  divorce  cause,  and  was  only  constructively  served 
with  notice  of  the  pendency  of  that  action,  it  is  apparent  that  the  Con- 
necticut court  did  not  acquire  jurisdiction  over  the  wife  within  the 
fifth  and  seventh  propositions ;  that  is,  did  not  acquire  such  jurisdic- 
tion by  virtue  of  the  domicil  of  the  wife  ^vithin  the  state  or  as  the 
result  of  personal  service  upon  her  within  its  borders. 

These  subjects  being  thus  eliminated,  the  case  reduces  itself  to  this: 
Whether  the  Connecticut  court,  in  virtue  alone  of  the  domicil  of  the 
husband  in  that  state,  had  jurisdiction  to  render  a  decree  against  the 
wife  under  the  circumstances  stated,  which  was  entitled  to  be  enforced 
in  other  states  in  and  by  virtue  of  the  full  faith  and  credit  clause  of 


554  PARTICULAR  SUBJECTS.  (Part  2 

the  Constitution.  In  other  words,  the  final  question  is  whether,  to 
enforce  in  another  jurisdictfoiTlTTF'ConhecticliTlJeci^'e,' \v6u 
to  enforce  in  one  state  a  personal  judgment  rendered  in  another  state 
against  a  defendant  over  whom  the  court  of  the  state  rendering  the 
judgment  had  not  acquired  jurisdiction?  Otherwise  stated,  the  ques- 
tion is  this :  Is  a  proceeding  for  divorce  of  such  an  exceptional  charac- 
ter as  not  to  come  within  the  rule  limiting  the  authority  of  a  state  to 
persons  with^  its  jurisdiction,  but,  on  the  contrary,  because  of  the 
power  which  government  may  exercise  over  the  marriage  relation, 
constitutes  an  exception  to  that  rule,  and  is  therefore  embraced  either 
within  the  letter  or  spirit  of  the  doctrine  stated  in  the  third  and  fourth 
propositions? 

Before  reviewing  the  authorities  relied  on  to  establish  that  a  divorce 
proceeding  is  of  the  exceptional  nature  indicated,  we  propose  first 
to  consider  the  reasons  advanced  to  sustain  the  contention.  In  doing 
so,  however,  it  must  always  be  borne  in  mind  that  it  is  elementary 
that  where  the  full  faith  and  credit  clause  of  the  Constitution  is  in- 
voked to  compel  the  enforcement  in  one  state  of  a  decree  rendered  in 
another,  the  question  of  the  jurisdiction  of  the  court  by  which  the 
decree  was  rendered  is  open  to  inquiry.  And  if  there  was  no  juris- 
diction, either  of  the  subject-matter  or  of  the  person  of  the  defendant, 
the  courts  of  another  state  are  not  required,  by  virtue  of  the  full  faith 
and  credit  clause  of  the  Constitution,  to  enforce  such  decree.  Nation- 
al Exch.  Bank  v.  Wiley,  195  U.  S.  257,  2G9,  25  Sup.  Ct.  70,  49  L.  Ed. 
184,  190,  and  cases  cited. 

I.  The  wide  scope  of  the  authority  which  government  possesses 
over  the  contract  of  marriage  and  its  dissolution  is  the  basis  upon 
which  it  is  argued  that  the  domicil  within  one  state  of  one  party  to  the 
marriage  gives  to  such  a  state  jurisdiction  to  decree  a  dissolution  of 
the  marriage  tie  which  will  be  obligatory  in  all  the  other  states  by 
force  of  the  full  faith  and  credit  clause  of  the  Constitution.  But  the 
deduction  is  destructive  of  the  premise  upon  which  it  rests.  This 
becomes  clear  when  it  is  perceived  that  if  one  government,  because 
of  its  authority  over  its  own  citizens,  has  the  right  to  dissolve  the  mar- 
riage tie  as  to  the  citizen  of  another  jurisdiction,  it  must  follow  that 
no  government  possesses  as  to  its  own  citizens,  power  over  the  mar- 
riage relation  and  its  dissolution.  For  if  it  be  that  one  government, 
in  virtue  of  its  authority  over  marriage,  may  dissolve  the  tie  as  to 
citizens  of  another  government,  other  governments  would  have  a 
similar  power,  and  hence  the  right  of  every  government  as  to  its  own 
citizens  might  be  rendered  nugatory  by  the  exercisfe  of  the  power 
which  every  other  government  possessed.  To  concretely  illustrate : 
If  the  fact  be  that  where  persons  are  married  in  the  state  of  New  York 
either  of  the  parties  to  the  marriage  may,  in  violation  of  the  marital 
obligations,  desert  the  other  and  go  into  the  state  of  Connecticut,  there 
acquiring  a  domicil,  and  procure  a  dissolution  of  the  marriage  which 
would  be  binding  in  the  state  of  New  York  as  to  the  party  to  the 


Ch.    3)  FAMILY   LAW.  555 

marriage  there  domiciled,  it  would  follow  that  the  power  of  the  state 
of  New  York  as  to  the  dissolution  of  the  marriage  as  to  its  domi- 
ciled citizen  would  be  of  no  practical  avail.  Andi  conversely,  the  like 
result  would  follow  if  the  marriage  had  been  celebrated  in  Connecticut 
and  desertion  had  been  from  that  state  to  New  York,  and  consequently 
the  decree  of  divorce  had  been  rendered  in  New  York.  Even  a  super- 
ficial analysis  will  make  this  clear.  Under  the  rule  contended  for  it 
would  follow  that  the  states  whose  laws  were  the  most  lax  as  to 
length  of  residence  required  for  domicil,  as  to  causes  for  divorce  and 
to  speed  of  procedure  concerning  divorce,  would  in  effect  dominate 
all  the  other  states.  In  other  words,  any  person  who  was  married  in 
one  state  and  who  wished  to  violate  the  marital  obligations,  would  be 
able,  by  following  the  lines  of  least  resistance,  to  go  into  the  state 
whose  laws  were  the  most  lax,  and  there  avail  of  them  for  the  purpose 
of  the  severance  of  the  marriage  tie  and  the  destruction  of  the  rights 
of  the  other  party  to  the  marriage  contract,  to  the  overthrow  of  the 
laws  and  the  public  policy  of  the  other  states.  Thus  the  argument 
comes  necessarily  to  this, — that  to  preserve  the  lawful  authority  of  all 
the  states  over  marriage  it  is  essential  to  decide  that  all  the  states  have 
such  authority  only  at  the  sufferance  of  the  other  states.  And  the 
considerations  just  stated  serve  to  dispose  of  the  argument  that  the 
contention  relied  on  finds  support  in  the  ruling  made  in  Maynard  v. 
Hill,  referred  to  in  the  fourth  proposition,  which  was  at  the  outset 
stated!  For  in  that  case  the  sole  question  was  the  effect  within  the 
territory  of  Washington  of  a  legislative  divorce  granted  in  the  terri- 
tory to  a  citizen  thereof.  The  upholding  of  the  divorce  within  the  ter- 
ritory was,  therefore,  but  a  recognition  of  the  power  of  the  territorial 
government,  in  virtue  of  its  authority  over  marriage,  to  deal  with  a 
person  domiciled  within  its  jurisdiction.  The  case,  therefore,  did  not 
concern  the  extraterritorial  efficacy  of  the  legislative  divorce.  In 
other  words,  whilst  the  ruling  recognized  the  ample  powers  which 
government  possesses  over  marriage  as  to  one  within  its  jurisdiction, 
it  did  not  purport  to  hold  that  such  ample  powers  might  be  exercised 
and  enforced  by  virtue  of  the  Constitution  of  the  United  States  in 
another  jurisdiction  as  to  citizens  of  other  states  to  whom  the  juris- 
diction of  the  territory  did  not  extend. 

The  anomalous  result  which  it  is  therefore  apparent  would  arise 
from  maintaining  the  proposition  contended  for  is  made  more  manifest 
by  considering  the  instrument  from  which  such  result  would  be  pro- 
duced,— that  is,  the  full  faith  and  credit  clause  of  the  Constitution. 
No  one  denies  that  the  states,  at  the  time  of  the  adoption  of  the  Con- 
stitution, possessed  full  power  over  the  subject  of  marriage  and  di- 
vorce. No  one,  moreover,  can  deny  that,  prior  to  the  adoption  of  the 
Constitution,  the  extent  to  which  the  states  would  recognize  a  divorce 
obtained  in  a  foreign  jurisdiction  depended  upon  their  conceptions  of 
duty  and  comity.  Besides,  it  must  be  conceded  that  the  Constitution 
delegated  no  authority  to  the  government  of  the  United  States  on  the 


556  PARTICULAR  SUBJECTS.  (Part  2 

subject  of  marriage  and  divorce.  Yet,  if  the  proposition  be  maintain- 
ed, it  would  follow  that  the  destruction  of  the  power  of  the  states  over 
the  dissolution  of  marriage,  as  to  their  own  citizens,  would  be  brought 
about  by  the  operation  of  the  full  faith  and  credit  clause  of  the  Consti- 
tution. That  is  to  say,  it  would  come  to  pass  that,  although  the  Con- 
stitution of  the  United  States  does  not  interfere  with  the  authority  of 
the  states  over  marriage,  nevertheless  the  full  faith  and  credit  clause 
of  that  instrument  destroyed  the  authority  of  the  states  over  the  mar- 
riage relation.  And  as  the  government  of  the  United  States  has  no 
delegated  authority  on  the  subject,  that  government  would  be  power- 
less to  prevent  the  evil  thus  brought  about  by  the  full  faith  and  credit 
clause.  Thus  neither  the  states  nor  the  national  government  would 
be  able  to  exert  that  authority  over  the  marriage  tie  possessed  by 
every  other  civilized  government.  Yet  more  remarkable  would  be 
such  result  when  it  is  borne  in  mind  that,  when  the  Constitution  was 
adopted,  nowhere,  either  in  the  mother  country  or  on  the  continent  of 
Europe,  eithef  in  adjudged  cases  or  in  the  treatises  of  authoritative 
writers,  had  the  theory  ever  been  upheld  or  been  taught  or  even  sug- 
gested that  one  government,  solely  because  of  the  domicil  within  its 
borders  of  one  of  the  parties  to  a  marriage,  had  authority,  without 
the  actual  or  constructive  presence  of  the  other,  to  exert  its  authority 
by  a  dissolution  of  the  marriage  tie,  which  exertion  of  power  it  would 
be  the  duty  of  other  states  to  respect  as  to  those  subject  to  their  juris- 
diction. 

II,  It  is  urged  that  the  suit  for  divorce  was  a  proceeding  in  rem, 
and,  therefore,  the  Connecticut  court  had  complete  jurisdiction  to  enter 
a  decree  as  to  the  res,  entitled  to  be  enforced  in  the  state  of  New  York. 
But  here  again  the  argument  is  contradictory.  It  rests  upon  the  theory 
that  jurisdiction  in  Connecticut  depended  upon  the  domicil  of  the 
person  there  suing,  and  yet  attributes  to  the  decree  resting  upon  the 
domicil  of  one  of  the  parties  alone  a  force  and  effect  based  upon  the 
theory  that  a  thing  within  the  jurisdiction  of  Connecticut  was  the 
subject-matter  of  the  controversy.  But  putting  this  contradiction 
aside,  what,  may  we  ask,  was  the  res  in  Connecticut?  Certainly  it 
cannot  in  reason  be  said  that  it  was  the  cause  of  action  or  the  mere 
presence  of  the  person  of  the  plaintiff  within  the  jurisdiction.  The 
only  possible  theory,  then,  upon  which  the  proposition  proceeds,  must 
be  that  the  res  in  Connecticut,  from  which  the  jurisdiction  is  assumed 
to  have  arisen,  was  the  marriage  relation.  But  as  the  marriage  was 
celebrated  in  New  York  between  citizens  of  that  state,  it  must  be  admit- 
ted under  the  hypothesis  stated,  that  before  the  husband  deserted  the 
wife  in  New  York  the  res  was  in  New  York,  and  not  in  Connecticut.  As 
the  husband,  after  wrongfully  abandoning  the  wife  in  New  York, 
never  established  a  matrimonial  domicil  in  Connecticut,  it  cannot  be 
said  that  he  took  with  him  the  marital  relation  from  which  he  fled  to 
Connecticut.  Conceding,  however,  that  he  took  with  him  to  Connecti- 
cut so  much  of  the  marital  relation  as  concerned  his  individual  status, 


Ch.    3)  '  FAMILY  LAW.  557 

it  cannjDt  in  reason  be  said  that  he  did  not  leave  in  New  York  so 
much  of  the  relation  as  pertained  to  the  status  of  the  wife.  From  any 
point  of  view,  then,  under  the  proposition  referred  to,  if  the  marriage 
relation  be  treated  as  the  res,  it  follows  that  it  was  divisible,  and  there- 
fore there  was  a  res  in  the  state  of  New  York  and  one  in  the  state  of 
Connecticut.  Thus  considered,  it  is  clear  that  the  power  of  one  state 
did  not  extend  to  affecting  the  thing  situated  in  another  state.  As 
illustrating  this  conception,  we  notice  the  case  of  Mississippi  &  M.  R. 
Co.  V.  Ward,  2  Black,  485,  17  L.  Ed.  311.  The  facts  in  that  case  were 
these:  A  bill  was  filed  in  a  district  court  of  the  United  States  for 
the  district  of  Iowa  to  abate  a  nuisance  alleged  to  have  been  occasioned 
by  a  bridge  across  the  Mississippi  river,  dividing  the  states  of  Illinois 
and  Iowa.  Under  the  assumption  that  the  nuisance  was  occasioned 
by  the  operation  of  the  bridge  on  the  Illinois  side,  the  court,  after 
pointing  out  that  the  United  States  circuit  court  for  the  district  of 
Iowa  exercised  the  same  jurisdiction  that  a  state  court  of  Iowa  could 
exercise,  and  no  more,  said  (2  Black,  494,  17  L.  Ed.  315)  : 

''The  district  court  had  no  power  over  the  local  object  inflicting  the 
injury;  nor  any  jurisdiction  to  inquire  of  the  facts,  whether  damage 
had  been  sustained,  or  how  much.  These  facts  are  beyond  the  court's 
jurisdiction  and  powers  of  inquiry,  and  outside  of  the  case." 

Nor  has  the  conclusive  force  of  the  view  which  we  have  stated 
been  met  by  the  suggestion  that  the  res  was  indivisible,  and  therefore 
was  wholly  in  Connecticut  and  wholly  in  New  York,  for  this  amounts 
but  to  saying  that  the  same  thing  can  be  at  one  and  the  same  time 
in  different  places.  Further,  the  reasoning  above  expressed  disposes 
of  the  contention  that,  as  the  suit  in  Connecticut  involved  the  status 
of  the  husband,  therefore  the  courts  of  that  state  had  the  power  to  de- 
termine the  status  of  the  nonresident  wife  by  a  decree  which  had 
obligatory  force  outside  of  the  state  of  Connecticut.  Here,  again, 
the  argument  comes  to  this — that,  because  the  state  of  Connecticut 
had  jurisdiction  to  fix  the  status  of  one  domiciled  within  its  borders, 
that  state  also  had  the  authority  to  oust  the  state  of  New  York  of 
the  power  to  fix  the  status  of  a  person  who  was  undeniably  subje^^^  to 
the  jurisdiction  of  that  state. 

III.  It  is  urged  that  whilst  marriage  is,  in  one  aspect,  a  contract,  it  is 
nevertheless  a  contract  in  which  society  is  deeply  interested,  and,  there- 
fore, government  must  have  the  power  to  determine  whether  a  mar- 
riage exists  or  to  dissolve  it,  and  hence  the  Connecticut  court  had 
jurisdiction  of  the  relation  and  the  right  to  dissolve  it,  not  only  as  to 
its  own  citizen,  but  as  fo  a  citizen  of  New  York  who  was  not  subject 
to  the  jurisdiction  of  the  state  of  Connecticut.  The  proposition  in- 
volves in  another  form  of  statement  the  non  sequitur  which  we  have 
previously  pointed  out ;  that  is,  that  because  government  possesses 
power  over  marriage,  therefore  the  existence  of  that  power  must  be 
rendered  unavailing, 


558  ^     .      PARTICULAR  SUBJECTS.  (Part  2 

Nor  is  the  contention  aided  by  the  proposition  that  because  it  is 
impossible  to  conceive  of  the  dissolution  of  the  marriage  as  to  one  of 
the  parties  in  one  jurisdiction  without,  at  the  same  time,  saying-  that 
the  marriage  is  dissolved  as  to  both  in  every  other  jurisdiction,  there- 
fore the  Connecticut  decree  should  have  obligatory  effect  in  New  York 
as  to  the  citizen  of  that  state.  For,  again,  by  a  change  of  form  of  state- 
ment, the  same  contention  which  we  have  disposed  of  is  reiterated. 
Besides,  the  proposition  presupposes  that  because,  in  the  exercise  of 
its  power  over  its  own  citizens,  a  state  may  determine  to  dissolve  the 
marriage  tie  by  a  decree  which  is  efficacious  within  its  borders,  there- 
fore such  decree  is  in  all  cases  binding  in  every  other  jurisdiction.  As 
we  have  pointed  out  at  the  outset,  it  does  not  follow  that  a  state  may 
not  exert  its  power  as  to  one  within  its  jurisdiction  simply  because 
such  exercise  of  authority  may  not  be  extended  beyond  its  borders  into 
the  jurisdiction  and  authority  of  another  state.  The  distinction  was 
clearly  pointed  out  in  Blackinton  v.  Blackinton,  141  Mass.  432,  55 
Am.  Rep.  484,  5  N.  E.  830.  In  that  case  the  parties  were  married 
and  lived  in  Massachusetts.  The  husband  abandoned  the  wife  without 
cause  and  became  domiciled  in  New  York.  The  wife  remained  at  the 
matrimonial  domicil  in  Massachusetts  and  instituted  a  proceeding  to 
prohibit  her  husband  from  imposing  any  restraint  upon  her  personal 
liberty  and  for  separate  maintenance.  Service  was  made  upon  the  hus- 
band in  New  York.  The  court,  recognizing  fully  that  under  the  cir- 
cumstances disclosed  the  domicil  of  the  husband  was  not  the  domicil  of 
the  wife,  concluded  that,  under  the  statutes  of  Massachusetts,  it  had 
authority  to  grant  the  relief  prayed,  and  was  then  brought  to  determine 
whether  the  decree  ought  to  be  made,  in  view  of  the  fact  that  such  de- 
cree nijght  not  have  extraterritorial  force.  But  this  circumstance 
was  held  not  to  be  controlling,  and  the  decree  was  awarded.  The  same 
doctrine  was  clearly  expounded  by  the  Privy  Council,  in  an  opinion 
delivered  by  Lord  Watson,  in  the  divorce  case  of  Le  Mesurier  v.  Le 
Mesurier  [1895]  A.  C.  517,  where  it  was  said  (page  527)  : 

"When  the  jurisdiction  of  the  court  is  exercised  according  to  the 
.rules  of  international  law,  as  in  the  case  where  the  parties  have  their 
domicil  within  its  forum,  its  decree  dissolving  their  marriage  ought  to 
be  respected  by  the  tribunals  of  every  civilized  country.  *  *  *  q^-, 
the  other  hand,  a  decree  of  divorce  a  vinculo,  pronounced  by  a  court 
whose  jurisdiction  is  solely  derived  from  some  rule  of  municipal  law 
peculiar  to  its  forum,  cannot,  when  it  trenches  upon  the  interests  of 
any  other  country  to  whose  tribunals  the  spouses  were  amenable,  claim 
extraterritorial  authority." 

IV.  The  contention  that  if  the  power  of  one  state  to  decree  a  dis- 
solution of  a  marriage  which  would  be  compulsory  upon  the  other 
states  be  limited  to  cases  where  both  parties  are  subject  to  the  juris- 
diction, the  right  to  obtain  a  divorce  could  be  so  hampered  and  restrict- 
ed as  to  be  in  effect  impossible  of  exercise,  is  bul,  to  insist  that  in  or- 
der to  favor  the  dissolution  of  marriage  and  to  cause  its  permanency  to 


Ch.    3)  FAMILY  LAW.  559 

depend  upon  the  mere  caprice  or  wrong  of  the  parties,  there  should 
not  be  applied  to  the  right  to  obtain  a  divorce  those  fundamental  princi- 
ples which  safeguard  the  exercise  of  the  simplest  rights.  In  other 
words,  the  argument  but  reproduces  the  fallacy  already  exposed,  which 
is,  that  one  state  must  be  endowed  with  the  attribute  of  destroying 
the  authority  of  all  the  others  concerning  the  dissolution  of  marriage 
in  order  to  render  stich  dissolution  easy  of  procurement.  But  even 
if  the  true  and  controlling  principles  be  for  a  moment  put  aside  and 
mere  considerations  of  inconvenience  be  looked  at,  it  would  follow 
that  the  preponderance  of  inconvenience  would  be  against  the  conten- 
tion that  a  state  should  have  the  power  to  exert  its  authority  concern- 
ing the  dissolution  of  marriage  as  to  those  not  amenable  to  its  juris- 
diction. By  the  application  of  that  rule  each  state  is  given  the  power 
of  overshadowing  the  authority  of  all  the  other  states,  thus  causing 
the  marriage  tie  to  be  less  protected  than  any  other  civil  obligation, 
and  this  to  be  accomplished  by  destroying  individual  rights  without 
a  hearing  and  by  tribunals  having  no  jurisdiction.  Further,  the  ad- 
mission that  jurisdiction  in  the  courts  of  one  state  over  one  party  alone 
was  the  test  of  the  right  to  dissolve  the  marriage  tie  as  to  the  other 
party,  although  domiciled  in  another  state,  would  at  once  render  such 
test  impossible  of  general  application.  In  other  words,  the  test,  if 
admitted,  would  destroy  itself.  This  follows,  since  if  that  test  were 
the  rule,  each  party  to  the  marriage  in  one  state  would  have  a  right 
to  acquire  a  domicil  in  a  different  state  and  there  institute  proceedings 
for  divorce.  It  would  hence  necessarily  arise  that  domicil  would  be 
no  longer  the  determinative  criterion,  but  the  mere  race  of  diligence 
between  the  parties  in  seeking  different  forums  in  other  states  or  the 
celerity  by  which  in  such  states  judgments  of  divorce  might  be  pro- 
cured would  have  to  be  considered  in  order  to  decide  which  forum 
was  controlling. 

On  the  other  hand,  the  denial  of  the  power  to  enforce  in  another 
state  a  decree  of  divorce  rendered  against  a  person  who  was  not  sub- 
ject to  the  jurisdiction  of  the  state  in  which  the  decree  was  rendered 
obviates  all  the  contradictions  and  inconveniences  which  are  above  in- 
dicated. It  leaves  uncurtailed  the  legitimate  power  of  all  the  states 
over  a  subject  peculiarly  within  their  authority,  and  thus  not  only 
enables'  them  to  maintain  their  public  policy,  but  also  to  protect  the 
individual  rights  of  their  citizens.  It  does  not  deprive  a  state  of  the 
power  to  render  a  decree  of  divorce  susceptible  of  being  enforced  with- 
in.its  borders  as  to  the  person  within  the  jurisdiction,  and  does  not 
debar  other  states  from  giving  such  eft'ect  to  a  judgment  of  that 
character  as  they  may  elect  to  do  under  mere  principles  of  state  comi- 
ty. It  causes  the  full  faith  and  credit  clause  of  the  Constitution  to 
operate  upon  decrees  of  divorce  in  the  respective  states  just  as  that 
clause  operates  upon  other  rights — that  is,  it  compels  all  the  states 
to  recognize  and  enforce  a  judgment  of  divorce  rendered  in  other 
states  where  both  parties  were  subject  to  the  jurisdiction  of  the  state 


560  PARTICULAR  SUBJECTS.  (Part  2 

in  which  the  decree  was  rendered,  and  it  enables  the  states  render- 
ing such  decrees  to  take  into  view,  for  the  purpose  of  the  exercise 
of  their  authority,  the  existence  of  a  matrimonial  domicil  from  which 
the  presence  of  a  party  not  physically  ^^resent  within  the  borders  of  a 
state  may  be  constructively  found  to  exist. 

Having  thus  disposed  of  the  reasoning  advanced  to  sustaifi  the  as- 
sertion that  the  courts  of  the  state  of  New  York  were  bound  by  the 
full  faith  and  credit  clause  to  give  full  effect  to  the  Connecticut  decree, 
we  are  brought  to  consider  the  authorities  relied  upon  to  support  that 
proposition. 

Whilst  the  continental  and  English  authorities  are  not  alluded  to  in 
the  argument,  it  may  be  well,  in  the  most  summary  way,  to  refer  to  them 
as  a  means  of  illustrating  the  question  for  consideration.  The  extent 
of  the  power  which  independent  sovereignties  exercised  over  the  dis- 
solution of  the  marriage  tie,  as  to  their  own  citizens,  gave  rise,  in 
the  nature  of  things,  to  controversies  concerning  the  extraterritorial 
effect  to  be  given  to  a  dissolution  of  such  tie  when  made  between 
citizens  of  one  country  by  judicial  tribunals  of  another  country  in 
which  such  citizens  had  become  domiciled.  We  do  not  deem  it  es- 
sential, however,  to  consider  the  conflicting  theories  and  divergent 
rules  of  public  policy  which  were  thus  engendered.  We  are  relieved 
of  the  necessity  of  entering  upon  such  an  inquiry,  since  it  cannot  be 
doubted  that  neither  the  practice  nor  the  theories  controlling  in  the 
countries  on  the  continent  lend  the  slightest  sanction  to  the  contention 
that  a  government,  simply  because  one  of  the  parties  to  a  marriage 
was  domiciled  within  its  borders,  where  no  matrimonial  domicil  ever 
existed,  had  power  to  render  a  decree  dissolving  a  marriage,  which, 
on  principles  of  international  law,  was  entitled  to  obligatory  extra- 
territorial effect  as  to  the  other  party  to  the  marriage,  a  citizen  of 
another  country.  1  Wharton,  Confl.  L.  (3d  Ed.)  §  209,  p.  441,  and 
notes. 

.  It  cannot  be  doubted,  also,  that  the  courts  of  England  decline  to 
treat  a  foreign  decree  of  divorce  as  having  obligatory  extraterritorial 
force  when  both  parties  to  the  marriage  were  not  subject  to  the  juris- 
diction of  the  court  which  rendered  the  decree.  Shaw  v.  Gould,  L.  R. 
3  H.  L.  55 ;  Harvey  v.  Farnie,  L.  R.  8  App.  Cas.  43.  And,  although 
it  has  been  suggested  in  opinions  of  English  judges  treating  of  divorce 
questions,  that  exceptional  cases  might  arise  which  perhaps  would 
justify  a  relaxation  of  the  rigor  of  a  presumption  that  the  domicil  of 
the  husband  was  the  domicil  of  the  wife  (per  Lords  Eldon  and  Redes- 
dale,  in  Tovey  v.  Lindsay,  1  Dow,  P.  C.  133,  140 ;  per  Lord  Westbury, 
in  Pitt  V.  Pitt,  4  Macq.  H.  L.  Cas.  627;  640;  per  Brett,  L.  J.,  in  Niboyet 
v.  Niboyet,  L.  R.  4  Prob.  Div.  1,  14;  Brigjrs  v  Briggs,  L.  R.  5  Prob. 
Div.  1C3,  1G5 ;  and  per  James  and  Cotton,  L.  JJ.,  in  Harvey  v.  Far- 
nie, L.  R.  6  Prob.  Div.  47,  49),  the  courts  of  England,  in  cases  where 
the  jurisdiction  was  dependent  upon  domicil,  have  enforced  the  pre- 
sumption, and  treated  the  wife  as  being  within  the  jurisdiction  where 


Ch.    3)  FAMILY  LAW.  561 

the  husband  was  legally  domiciled.  But  this  conception  was  not  a 
departure  from  the  principle  uniformly  maintained,  that,  international- 
ly considered,  jurisdiction  over  both  parties  to  a  marriage  was  essen- 
tial to  the  exercise  of  power  to  decree  a  divorce,  but  was  simply  a 
means  of  determining  by  a  legal  presumption  whether  both  parties 
were  within  the  jurisdiction.  Of  course,  the  rigor  of  the  English 
rule  as  to  the  domicil  of  the  husband  being  the  domicil  of  the  wife 
is  not  controlling  in  this  court,  in  view  of  the  decisions  to  which  we 
have  previously  referred,  recognizing  the  right  of  the  wife,  for  the 
fault  of  the  husband,  to  acquire  a  separate  domicil.  Barber  v.  Bar- 
ber, 21  How.  582,  16  L.  Ed.  226 ;  Cheever  v.  Wilson,  9  Wall.  108,  19 
L.  Ed.  604;  Atherton  v.  Atherton,  181  U.  S.  155,  21  Sup.  Ct.  544, 
45  L.  Ed.  794. 

And  even  in  Scotland,  where  residence,  as  distinguished  from  domi- 
cil, was  deemed  to  authorize  the  exercise  of  jurisdiction  to  grant  di- 
vorces, it  was  invariably  recognized  that  the  presence  within  the  juris- 
diction of  both  parties  to  the  marriage  was  essential  to  authorize  a 
decree  in  favor  of  the  complainant.  1  Wharton,  Confl.  L.  §  215,  p. 
447 ;  per  Lord  Westbury,  in  Shaw  v.  Gould,  L.  R.  3  H.  L.  88. 

As  respects  the  decisions  of  this  court:  We  at  once  treat  as  inap- 
posite, and  therefore  unnecessary  to  be  here  specially  reviewed,  those 
holding  (a)  that  where  the  domicil  of  a  plaintiff  in  a  divorce  cause  is  in 
the  state  where  the  suit  was  brought,  and  the  defendant  appears  and 
defends,  as  both  parties  are  before  the  court,  there  is  power  to  render 
a  decree  of  divorce  which  will  be  entitled  in  other  states  to  recognition 
under  the  full  faith  and  credit  clause  (Cheever  v.  Wilson,  supra)  ; 
(b)  that,  as  distinguished  from  legal  domicil,  mere  residence  within 
a  particular  state  of  the  plaintiff  in  a  divorce  cause  brought  in  a 
court  of  such  state  is  not  sufficient  to  confer  jurisdiction  upon  such 
court  to  dissolve  the  marriage  relation  existing  between  the  plaintiff 
and  a  nonresident  defendant.  Andrews  v.  Andrews,  188  U.  S.  14, 
23  Sup.  Ct.  237,  47  L.  Ed.  366 ;  Streitwolf  v.  Streitwolf,  181  U.  S. 
179,  21  Sup.  Ct.  553,  45  L.  Ed.  807;  Bell  v.  Bell,  181  U.  S.  175,  21 
Sup.  Ct.  551,  45  L.  Ed.  804.  This  brings  us  to  again  consider  a  case 
heretofore  referred  to,  principally  relied  upon  as  sustaining  the  con- 
tention that  the  domicil  of  one  party  alone  is  sufficient  to  confer  juris- 
diction upon  a  judicial  tribunal  to  render  a  decree  of  divorce  having 
extraterritorial  effect,  viz.,  Atherton  v.  Atherton,  181  U.  S.  155,  21 
Sup.  Ct.  544,  45  h.  Ed.  794.  The  decision  in  that  case,  however,  as  we 
have  previously  said,  was  expressly  placed  upon  the  ground  of  matri- 
monial domicil.  This  is  apparent  from  the  following  passage,  which 
we  excerpt  from  the  opinion  at  page  171  of  181  U.  S.,  45  L.  Ed.  at 
page  803,  and  21  Sup.  Ct.  at  page  550 : 

"This  case  does  not  involve  the  validity  of  a  divorce  granted,  on 
constructive  service,  by  the  court  of  a  state  in  which  only  one  of  the 
parties  ever  had  a  domicil;  nor  the  question  to  what  extent  the  good 
LoB.CoNl'.L.— 36 


562  PARTICULAR  SUBJECTS.  (Part  2 

faith  of  the  domicil  may  be  afterwards  inquired  into.  In  this  case 
the  divorce  in  Kentucky  was  by  the  court  of  the  state  which  had  always 
been  the  undoubted  domicil  of  the  husband,  and  which  was  the  only 
matrimonial  domicil  of  the  husband  and  wife.  The  single  question 
to  be  decided  is  the  validity  of  that  divorce,  granted  after  such  notice 
had  been  given  as  was  required  by  the  statutes  of  Kentucky." 

The  contention,  therefore,  that  the  reasoning  of  the  opinion  demon- 
strates that  the  domicil  of  one  of  the  parties  alone  was  contemplated 
as  being  sufficient  to  found  jurisdiction,  but  insists  that  the  case  de- 
cided a  proposition  which  was  excluded  in  unmistakable  language. 
But,  moreover,  it  is  clear,  when  the  facts  which  were  involved  in  the 
Atherton  Case  are  taken  into  view,  that  the  case  could  not  have  been 
decided  merely  upon  the  ground  of  the  domicil  of  one  of  the  parties, 
because  that  consideration  alone  would  have  afforded  no  solution  of 
the  problem  which  the  case  presented.  The  salient  facts  were  these : 
The  husband  lived  in  Kentucky,  married  a  citizen  of  New  York,  and 
the  married  couple  took  up  their  domicil  at  the  home  of  the  husband  in 
Kentucky,  where  they  continued  to  reside  and  where  children  were 
born  to  them.  The  wife  left  the  matrimonial  domicil  and  went  to 
New  York.  The  husband  sued  her  in  Kentucky  for  a  divorce.  Be- 
fore the  Kentucky  suit  merged  into  a  decree  the  wife,  having  a  resi- 
dence in  New  York  sufficient,  under  ordinary  circumstances,  to  con- 
stitute a  domicil  in  that  state,  sued  the  husband  in  the  courts  of  New 
York  for  a  limited  divorce.  Thus  the  two  suits,  one  by  the  husband 
against  the  wife  and  the  other  by  the  wife  against  the  husband,  were 
pending  in  the  respective  states  at  the  same  time.  The  husband  obtain- 
ed a  decree  in  the  Kentucky  suit  before  the  suit  of  the  wife  had  been 
determined,  and  pleaded  such  decree  in  the  suit  brought  by  the  wife 
in  New  York,  The  New  York  court,  however,  refused  to  recognize 
*.he  Kentucky  decree,  and  the  case  came  here,  and  this  court  decided 
that  the  courts  of  New  York  were  bound  to  give  effect  to  the  Ken- 
tucky decree  by  virtue  of  the  full  faith  and  credit  clause.  Under  these 
conditions  it  is  cleaf  that  the  case  could  not  have  been  disposed  of  on 
the  mere  ground  of  the  individual  domicil  of  the  parties,  since  upon 
that  hypothesis,  even  if  the  efficacy  of  the  individual  domicil  had  been 
admitted,  no  solution  would  have  been  thereby  afforded  of  the  problem 
which  would  have  risen  for  decision,  that  problem  being  which  of  the 
two  courts  wherein  the  conflicting  proceedings  were  pending  had  the 
paramount  right  to  enter  a  binding  decree.  Having  disposed  of  the 
case  upon  the  principle  of  matrimonial  domicil,  it  cannot  in  reason 
be  conceived  that  the  court  intended  to  express  an  opinion  upon 
the  soundness  of  the  theory  of  individual  and  separate  domicil  which, 
isolatcdly  considered,  was  inadequate  to  dispose  of,  and  was,  therefore, 
irrelevant  to,  the  question  for  decision. 

[The  learned  justice  here  reviewed  the  decisions  of  the  state  courts 
and  concluded  that  they  did  not  support  the  contention  that  decrees  of 
divorce  obtained  in  a  state  with  jurisdiction  alone  of  the  plaintiff  are, 


Ch.    3)  FAMILY  LAW.  563 

by  virtue  of  the  full  faith  and  credit  clause  of  the  Constitution,  en- 
titled to  be  enforced  in  another  state  as  against  citizens  of  such  state.] 
Without  questioning  the  power  of  the  state  of  Connecticut  to  enforce 
within  its  own  borders  the  decree  of  divorce  which  is  here  in  issue, 
and  without  intimating  a  doubt  as  to  the  power  of  the  state  of  New 
York  to  give  to  a  decree  of  that  character  rendered  in  Connecticut, 
within  the  borders  of  the  state  of  New  York  and  as  to  its  own  citi- 
zens, such  efficacy  as  it  may  be  entitled  to  in  view  of  the  public  policy 
of  that  state,  we  hold  that  the  decree  of  the  court  of  Connecticut  ren- 
dered under  the  circumstances  stated  was  not  entitled  to  obligatory 
enforcement  in  the  state  of  New  York  by  virtue  of  the  full  faith  and 
credit  clause.  It  therefore  follows  that  the  court  below  did  not  violate 
the  full  faith  and  credit  clause  of  the  Constitution  in  refusing  to  admit 
the  Connecticut  decree  in  evidence;  and  its  judgment  is,  therefore,  af- 
firmed.2* 


24  The  dissenting  opinions  of  Brown  and  Holmes,  JJ.,  with  wliom  concur- 
red Harlan  and  Brewer,  JJ.,  liave  been  omitted. 

"It  does  undoubtedly  follow  that  the  res^ — that  is,  the  marriage  relation — 
was  as  much  in  the  state  of  New  York  as  it  was  in  the  state  of  Connecticut, 
but  it  does  not  follow  that  the  action  of  the  Conueoticut  court  with  respect 
to  that  res  is  not  as  much  obligatory  in  New  York  as  in  Connecticut.  It  is 
of  the  very  essence  of  proceedings  in  rem  that  the  decree  of  a  court  with  re- 
spect to  the  res,  whether  it  be  a  vessel,  a  tract  of  land,  or  the  marriage  re- 
lation, is  entitled  to  be  respected  in  every  other  state  or  country.  The  status 
fixed  by  the  adjudication  in  the  state  of  the  former  is  operative  everywhere." 
Brown,  J.,  dissenting.  201  U.  S.  616.  26  Sup.  Ct.  546.  50  L.  Ed.  SS9. 

"There  is  no  difference,  so  far  as  I  can  see,  between  Atherton  v.  Atherton 
and  the  present  case,  except  that  in  Atherton  v.  Atherton  the  forum  of  the 
first  decree  was  that  of  the  matrimonial  domicile,  whereas  in  this  the  court 
was  that  of  a  domicile  afterwards  acquired.  «  *  *  j  cannot  see  any 
ground  for  distinguishing  between  the  extent  of  jurisdiction  in  the  matrimo- 
nial domicile  and  that,  admitted  to  exist  to  some  extent,  in  a  domicile  later 
acquired."  Holmes,  J.,  dissenting,  201  U.  S.  629,  631,  26  Sup.  Ct.  552,  50  L. 
Ed.   894. 

See,  in  general,  59  L.  R.  A.  135-187 ;  91  Am.  St.  Rep.  553-5-55 ;  6  Col.  Law 
Rev.  449;  18  Harv.  Law  Rev.  215;  4  Mich.  Law  Rev.  534;  Minor,  Conflict 
of  Laws,  §§  84^96;  Joseph  'H.  Beale.  Jr.,  Constitutional  Protection  for  Di- 
vorce, 19  Harv.  Law  Rev.  586-597;  Henry  Schofield,  The  Doctrine  of  Had- 
dock V.  Haddock,  1  ID.  Law  Rev.  219-241. 

The  grounds  for  divorce  are  determined  exclusively  by  the  law  of  the  forum. 
Wilcox  V.  Wilcox.  10  Ind.  436  (1858).  Some  courts  refuse  to  take  jurisdiction 
where  the  cause  for  divorce  arose  before  the  acquisition  of  a  domicile  by  the 
libelant  in  the  state  of  the  forum.     Norris  v.  Norris,  04  N.   H.  523.   15  Atl. 

19  (1888) ;    Nicholas  v.  Maddox.  52  La.  Ann.  1493.  27  South.  966  (1900). 
Municipal  Jurisdiction  for  Divorce.— "It  is  very  evident,  upon  examining 

the  statutes  of  the  different  states  of  the  Union,  that  legislation  vesting  juris- 
diction for  divorce  in  their  courts  has 'followed  no  principle  of  general  law  in 
this  respect  whatsoever;  some  statutes  making  the  jurisdiction,  or  suppos- 
ing it,  to  depend  upon  the  place  of  the  contract,  some  upon  the  place  of  the 
delictum,  and  some,  as  in  this  state,  and  as  they  should  do,  upon  the  domicile 
of  the  wronged  and  petitioning  party.  The  courts  of  each  state  exercise,  as 
they  must,  jurisdiction  upon  the  principles  laid  down  for  them  by  statute, 
and  have  very  little  occasion,  unless  called  upon  to  review  the  decree  of  some 
neighboring  state,  to  attend  to  or  consider  any  general  principles  pertaining 
to  the  subject."  Ames,  C.  J.,  in  Ditson  v.  Dirson,  4  R.  I.  87,  103  (1850). 
Annulment  of  a  Voidable  Marriage.— See  Minor,  Conflict  of  Laws,  §  78; 

20  Harv.  Law  Rev.  412 ;  18  Law  Quar.  Rev.  231 ;  Cummington  v.  Belchertowu, 


564  PARTICULAR  SUBJECTS.  (Part  2 

149  Mass.  223,  21  N.  E.  435,  4  L.  R.  A.  131  (1889);  Ogden  v.  Ogden  [1908] 
Prob.  78. 

Continental  Law. — France. — As  to  municipal  jurisdiction  with  resi)ect  to 
foreigners,  see  App.  Paris,  Jan.  14,  189G  (23  Clunet,  149) ;  Trib.  Civ.  Lyon, 
Nov.  16,  1906  (2  Darras,  713).  Such  jui-isdiction  is  deemed  to  relate  to  the 
person  only.  The  lack  of  jurisdiction  will  be  regarded  as  waived  unless  ob- 
jection thereto  is  raised  in  time.  App.  Alger,  Feb.  1,  1897  (25  Clunet,  352) ; 
App.  Aix,  April  27,  1903  (31  Clunet.  382) ; '  Trib.  Civ.  Lyon,  Nov.  16,  1906  (2 
Darras,  713).  Whether  a  divorce  or  separation  will  be  granted,  if  jurisdic- 
tion is  assumed,  will  depend  in  the  first  place  upon  the  national  law  of  the 
parties.  App.  Paris,  Dec.  31,  1907  (35  Clunet,  518) ;  App.  Paris,  Jan.  30,'  1908 
(35  Cliuiet,  790).  A  divorce  has  been  denied  in  accordance  with  this  rule 
notwithstanding  the  marriage  was  celebrated  in  Ftance.  Cass.  Feb.  12,  1895 
(D.  1896,  1,  377).  And  even  though  the  provisions  of  the  national  law  were  bas- 
ed upon  religious  considerations.  Cass.  May  29,  1905  (D.  1905,  1,  353) ;  Cass. 
Oct.  30,  1905  (D.  igoo,  1,  305),  and  note.  For  the  same  reason  an  application 
for  the  conversion  of  a  decree  of  separation  into  one  of  absolute  divorce  has 
been  denied,  although  the  petitioner  had  since  the  granting  of  such  decree 
reacquired  the  French  nationality.  Trib.  Civ.  Dieppe,  June  19,  1905  (2  Darras, 
515).  It  has  also  been  held  that  the  national  law  of  the  parties  at  the  time 
of  the  marriage  should  govern.  App.  Alger,  Jan.  27,  1892  (19  Clunet,  662) ; 
Trib.  Civ.  Seine,  July  1,  1902  (30  Clunet,  163).  A  divorce  will  be  granted 
to  a  person  who  has  acquired  the  French  nationality,  notwithstanding  the  de- 
fendant remains  the  subject  of  a  country  which  does  not  recognize  divorce. 
Trib.  Civ.  Seine,  June  18,  1896  (23  Clunet.  842) ;  App.  Alger,  Dec.  13,  1897  (35 
Clunet,  723);  Ti-ib.  Civ.  Bone,  May  14.  1907  (35  Clunet.  466).  Contra:  App. 
Alger,  Jan.  27,  1892  (19  Clunet,  662) ;  Trib.  Civ.  Nice,  Dec.  9,  1896  (24  Clunet, 
333) ;  App.  Montpellier,  Feb.  19,  1900  (D.  1901,  2,  25),  and  note  by  J.  Val^ry ; 
Trib.  Civ.  Marseilles,  June  27,  1907  (35  Clunet,  1129).  The  grounds  for  di- 
vorce or  judicial  separation  are  likewise  determined  with  reference  to  the 
national  law  of  the  parties.  Trib.  Civ.  Seine,  June  5,  1891  (19  Clunet,  194) ; 
App.  Rouen,  June  30.  1897  (2  Darras,  511).  Subject,  however,  to  renvoi,  Trib. 
Civ.  Seine,  May  7,  1908  (4  Darras,  627),  and  subject  to  the  rules  of  public  order 
(for  example,  if  the  national  law  should  allow  a  divorce  by  mutual  consent). 
See  Trib.  Civ.  Marseilles,  Feb.  21,  1902  (D.  1962,  2,  198).  Indeed,  it  has  been 
said  that  to  grant  a  divorce  for  a  ground  not  recognized  by  French  law  would 
of  itself  violate  the  French  rules  concerning  public  order.  Trib.  Civ.  Blois, 
May  10,  1906  (4  Darras,  698).  See,  also,  Trib.  Civ.  Pau,  Nov.  2,  1907  (35 
Clunet,  473). 

A  decree  of  divorce  or  separation  granted  by  a  foreign  court  to  parties, 
both  of  whom  are  French  subjects,  will  not  be  recognized.  App.  Paris,  May 
28,  1884  (11  Clunet,  622).  It  is  not  clear  under  what  circumstances,  in  the 
absence  of  treaty,  French  courts  will  recognize  a  decree  of  divorce  granted 
by  the  courts  of  a  country  to  which  both  parties^  do  not  belong.  This  is  par- 
ticularly true  when  either  of  the  parties  is  a  French  subject.  See  note  to 
App.  Paris,  Nov.  2.  1906  (3  Darras,  199). 

For  the  recognition  of  a  foreign  decree  of  divorce  rendered  by  a  com- 
petent court  no  exequatur  is  required,  so  long  asi  no  acts  of  execution  are 
involved.  App.  Paris,  April  6,  1903  (D.  1904,  2,  273).  But  where  the  parties 
are  French  an  exequatur  is  needed  for  the  registration  of  the  foreign  decree 
in  France.     App.  Paris,  Nov.  2,  1906  (3  Darras,  199). 

Gemumij. — With  respect  to  municipal  jurisdiction  where  either  party  is 
or  was  a  German  subject,  see  section  606,  pars.  1,  2,  Code  Civ.  Proc.  See,  al- 
so, R.  G.  Jan.  7,  1906  (35  Clunet,  533).  If  both  parties  are  foreigners,  jurisdic- 
tion for  divorce  will  be  assumed  only  if  it  is  authorized  by  the  law  of  tlie 
couriti-y  of  which  the  husband  is  a  subject.  Section  606.  par.  3,  Code  Civ. 
Proc.  As  a  separation  from  bed  and  board  is  not  recognized  under  German 
law,  such  a  decree  will  not  be  rendered  in  favor  of  foreigners  whose  national 
law  may  admit  of  it.  55  R.  G.  345  (Oct.  12,  1903).  The  national  law  of  the 
husband  at  the  time  of  divorce  determines  the  grounds  for  which  a  divorce 
will  be  granted  (article  17,  par.  1,  Law  Intr.  Civ.  Code),  subject  to  renvoi 
(article  27,  Law  Intr.  Civ.  Code).  See,  also,  O.  L.  G.  Ham.  Dec.  19,  1905  (18 
Niemeyer,  114).  An  act  occurring  while  the  husband  possessed  another  na- 
tionality will  be  recognized  as  a  ground  for  divorce  or  judicial  separation 
only  if  it  constitutes  a  ground  also  according  to  the  law  of  such  state.     Ger- 


Ch.    3)  FAMILY  LAW.  565 

man  law  applies  if  at  the  time  of  the  suit  the  husband  has  lost  his  German 
nationality  but  the  wife  has  retained  hers.  Article  17,  par.  3,  Law  Intr.  Civ. 
Code. 

A  divorce  will  not  be  granted  in  accordance  with  the  national  law  where 
the  cause  is  not  recognized  as  a  ground  for  divorce  under  German  law.  Ar- 
ticle 17,  par.  4,  Law  Intr.  Civ.  Code. 

The  recognition  of  a  foreign  decree  of  divorce  is  subject  to  the  general 
provisions  contained  in  section  328,  Code  Civ.  Proc. 

Italy. — The  national  law  of  the  parties  applies  to  all  questions  of  status. 
Article  6,  Prel.  Disp.  Civ.^Code.  But  on  principle  Italian  courts  are  incom- 
petent to  determine  the  status  of  foreigners.  App.  Milan,  Feb.  15,  1S7G  (Mon- 
itore  1876,  p.  318).  Contra:  App.  Lucca,  Dec.  11,  1872  (Annali  1873,  2,  93); 
Trib.  Civ.  Ancona,  March  23,  1882  (Monitore  1882,  p.  738).  Since  divorce  is 
not  allowed  by  the  municipal  law  of  Italy  (article  148,  Civ.  Code)  a  decree 
of  a  foreign  court  granting  a  divorce  to  an  Italian  subject  will  not  be  recog- 
nized. Cass.  Turin,  June  6,  1894  (La  Legge  1894,  2,  515).  A  decree  of  divorce 
pronounced  by  a  competent  foreign  court  with  regard  to  foreigners  whose 
law  permits  divorce  will  be  recognized.  Cass.  Rome,  Aug.  17.  1904  (33  Clu- 
net,  514) ;  App.  ]Milan,  Oct.  13,  1891  (S.  1892,  4,  29) ;  App.  Turin,  Dec.  9,  1893 
(S.  1894,  4,  9).  And  this  is  true  notwithstanding  the  marriage  was  celebrat- 
ed in  Italy.  App.  Venice,  Feb.  21,  1902  (Monitore  1902,  p.  955)  ;  App.  Palermo, 
Sept.  15,  1900  (La*  Legge  1901,  1,  230) ;  App.  Florence,  Nov.  14,  1905  (La  Legge 
1906,  42).  Contra:  Cass.  Turin,  Nov.  21,  1900  (Monitore  1900,  p.  981),  semble. 
There  is  considerable  conflict  on  the  question  whether  such  a  decree  will 
be  recognized  when  the  marriage  took  place  in  Italy,  one  or  both  of  the  par- 
ties being  at  the  time  Italian  subjects,  who  have  since  acquired  another  nation- 
ality. See  note  by  F.  Rey  to  Cass.  Florence,  Dec.  6,  1902  (30  Clunet,  910),  and 
note  to  same  case  by  G.  C.  Buzzati  in  I^a  Legge  1903,  332. 

The  above  rules  are  subject  to  the  provisions  of  the  Convention  of  the 
Hague  of  June  12,  1902.  See  Appendix  A,  II.  See,  also,  Alfred  Droz,  De  1' 
influence  de  la  convention  de  la  Haye  du  12  Juin,  1902,  sur  les  questions  de 
divorce  en  France  entre  epoux  de  nationalite  differente,  34  Clunet,  19-28; 
Franz  Kahn,  Die  Haager  Scheidungskonvention,  15  Niemeyer,  125-264. 

Custody  of  Children — Effect  of  Divorce  upon  Property — Alimony^ 
American  and  Continental  Law. — Jurisdiction  to  dissolve  the  marriage  sta- 
tus does  not  include  necessarily  the  right  to  dispose  effectively  of  the  custody  of 
children  or  to  award  alimony.  With  respect  to  the  custody  of  children,  it  ap- 
pears that  the  actual  residence  of  the  children  confers  jurisdiction.  Seeley 
V.  Seele.y,  36  Wash.  Law  Rep.  4  (1908).  See,  also.  Minor,  Conflict  of  Laws, 
§  96.  On  the  continent  the  national  law  governs.  Italy,  Genoa,  July  16, 
1891  (Monitore  1891,  p.  823).  France,  Trib.  Civ.  Laval,  April  12,  1902  (29 
Clunet,  1044).  It  has  been  held,  however,  that  the  matter  falls  within  the 
police  laws  of  the  state  and  that  the  lex  fori  and  the  welfare  of  the  child 
should  control.  App.  Alger,  Oct.  24,  1904  (2  Darras,  187);  Trib.  Civ.  Seine, 
Nov.  29,  1904  (1  Darras,  671). 

In  order  to  render  a  valid  personal  judgment  of  alimony  against  a  party 
who  has  not  appeared  in  the  divorce  proceedings,  personal  service  is  required. 
Rigney  v.  Rigney,  127  N.  Y.  408,  28  N.  E.  405,  24  Am.  St.  Rep.  462  (1891) ; 
Prosser  v.  Warner,  47  Vt.  667,  19  Am.  Rep.  132  (1875).  It  has  been  held, 
however,  that  such  a  decree  against  a  nonresident  will  be  binding  within  the 
state  where  it  was  rendered.  Blackinton  v.  Blackinton,  141  Mass.  432,  5  N.  E. 
830,  55  Am.  Rep.  484  (1886). 

As  to  the  effect  of  a  valid  divorce  upon  the  dower  rights  of  the  wife  in  an- 
other state,  see  59  L.  R.  A.  181-183 ;  Barrett  v.  Failing,  111  U.  S.  523,  4  Sup. 
Ct.  598,  28  L.  Ed.  505  (1884) ;  Gould  v.  Crow,  .57  Mo.  200  (1S74) ;  Van  Cleaf 
V.  Burns,  118  N.  Y.  549.  23  N.  E.  881,  16  Am.  St.  Rep.  782  (1890). 

As  to  the  effect  of  a  divorce  upon  the  personal  property  of  the  parties,  see 
59  L.  R.  A.  183 ;  McGrew  v.  Mutual  Life  Ins.  Co.,  132  Cal.  85,  64  Pac.  103,  84 
Am.  St.  Rep.  20  (1901),  writ  of  error  dismissed  in  188  U.  S.  291,  23  Sup. 
Ct.  375,  47  L.  Ed.  480,  63  L.  R.  A.  33  (1903) :  Carter  v.  Mutual  Life  Ins.  Co., 
10  Hawaii,  562  (1896). 

In  Germany  the  effect  of  divorce  with  respect  to  the  duty  to  support  (see 
K.  G.  Sept.  20,  1901,  12  Niemeyer,  124),  and  with  respect  to  the  property 
rights  of  the  parties,  is  governed  by  the  law  applicable  to  the  divorce,  sub- 


566  PARTICULAR  SUBJECTS.  (Part  2 

SECTION      3.— LEGITIMATION  AND  ADOPTION. 


In  re  GROVE. 
(Court  of  Appeal,  1889.    40  Ch.  Div.  216,  58  L.  J.  Ch.  57.) 

Further  consideration. 

This  was  an  action  for  the  administration  of  the  estate  of  Caro- 
line Emiha  Grove,  a  domiciled  Englishwoman,  who  died  on  the  29th  of 
October,  1866,  at  the  age  of  eighty-eight,  a  lunatic  and  intestate,  and 
possessed  of  considerable  personal  estate. 

In  October,  1867,  as  no  next  of  kin  appeared  to  claim  her  estate, 
letters  of  administration  were  granted  to  the  Solicitor  to  the  Treasury ; 
and  the  Treasury  shortly  afterwards  took  possession  qf  the  estate. 

Two  sets  of  persons  subsequently  set  up  conflicting  claims  to  the 
estate  as  next  of  kin  of  the  intestate,  i.  e.  the  Vaucher  family  and  the 
Falquet  family,  and  this  action  was  brought  by  a  member  of  the 
former  family  in  1881. 

In  the  course  of  the  proceedings  an  inquiry  was  directed  as  to  who 
were  the  next  of  kin  of  the  intestate,  and  evidence  was  gone  into  from 
which  it  appeared  that  both  the  Vaucher  family  and  the  Falquet  family 
claimed  through  the  same  man.  Marc  Thomegay,  and  the  same  woman, 
Martha  Powis,  under  the  following  circumstances : 

Marc  Thomegay,  who  was  the  grandfather  of  the  intestate,  was 
born  in  Geneva  of  Swiss  parents,  in  the  year  1712,  and  there  was  no 
question  that  his  domicil  of  origin  was  Genevese.  On  the  13th  of 
August,  1728,  he  was  received  as  a  burgess  of  Geneva.  In  1729,  his 
father,  who  was  a  watchmaker,  died  in  Geneva.  Marc  Thomegay  was 
a  worker  in  gold  and  silver,  and  in  1734,  being  then  twenty-two  years 
of  age,  he  came  to  England,  where  he  remained  until  his  death  in  1779. 
In  the  year  1743,  a  private  act  of  Parliament  was  passed,  whereby 
Peter  Thomegay,  the  brother  of  Marc  Thomegay,  and  four  other  for- 
eigners were  naturalized  as  subjects  of  Great  Britain,  but  this  act  did 
not  include  and  made  no  mention  of  Marc  Thomegay. 

Some  time  after  the  arrival  of  Marc  Thomegay  in  England,  he  form- 
ed a  connection  with  an  Englishwoman  named  Martha  Powis ;  he 
cohabited  witH  her  for  several  years,  and  had  by  her  three  illegitimate 
children,  viz.,  Sarah,  who  was  born  on  the  5th  of  February,  1744,  and 
was  baptised  on  the  24th  of  the  same  month  by  the  name  of  Sarah 
Thomegay,  in  the  church  of  St.  Mary,  Whitechapel,  where  he  present- 
ed her  under  his  own  name  and  as  his  daughter;  a  son  was  born  on 
the  11th  of  January,  1745,  and  was  baptised  on  the  16th  of  February 
following,  in  the  same  church ;  and  another  daughter,  who  was  born  on 

ject,  however,  to  the  rules  governing  the  matrimonial   property  regime.     G. 
IMauok,  Biirgerliches  Gesetzbuch,  vol.  VI,  art.  15,  2  c. 


Ch.    3)  FAMILY  LAW.  5G7 

the  14th  of  November,  1747,  and  was  baptised  on  the  13th  of  Decem- 
ber following,  in  the  parish  church  of  Barking  in  Essex.  These  two 
children  were  also  baptised  under  their  father's  name,  and  as  his 
children. 

Sarah  Thomegay,  on  the  19th  of  December,  17G8,  married  "M.  Del- 
om,  a  citizen  of  Vevey,  and  she  was  the  ancestress  of  the  Vaucher 
family, 

Elizabeth  Thomegay  married  a  M.  Courbel,  a  citizen  of  Geneva.  On 
the  22nd  of  May,  1749,  Marc  Thomegay  was  married  to  an  English- 
woman named  Elizabeth  Woodhouse,  in  the  church  of  St.  Pancras. 
Of  this  marriage  there  was  issue  one  child,  viz.  Margaret  Sarah 
Thonjegay,  who  was  born  on  the  22nd  of  December,  1749,  and  was 
baptised  on  the  13th  of  January,  1750,  in  the  church  of  St.  Leonard's, 
Shoreditch.  Margaret  Sarah  Thomegay,  on  the  13th  of  June,  1788, 
married  an  Englishman  named  William  Grove,  and  she  died  in  Lon- 
don in  the  year  1792,  having  had  issue  one  child  only,  viz.,  the  intes- 
tate Caroline  Emilia  Grove. 

Elizabeth  Woodhouse  died  on  the  26th  of  March,  1752,  and  on  the 
2nd  of  February,  1755,  Marc  Thomegay  married  Martha  Powis,  by 
whom  he  had  formerly  had  the  three  illegitimate  children  above  men- 
tioned. 

Of  this  marriage  there  was  issue  four  children,  one  of  whom  died 
in  infancy.  The  others  were  Jean,  who  was  born  on  the  5th  of  Octo- 
ber, 1756,  and  was  baptised  on  the  29th  of  the  same  month  in- the 
church  of  Westham,  Essex;  Richard,  who  was  born  on  the  11th  of 
February,  1762,  and  was  baptised  on  the  1st  of  March  following,  in 
the  church  of  St.  Leonard's,  Shoreditch;  and  Sophie  Martha,  who 
was  born  on  the  12th  of  November,  1764,  and  was  baptised  on  the 
7th  of  December  following,  in  the  same  church. 

Of  these  three  children,  Sophie  IMartha  was  the  only  one  who  left 
issue,  and  she  in  1791,  married  Jean  Louis  Falquet,  and  was  the  an- 
cestress of  the  Falquet  family. 

Martha  Thomegay  (nee  Powis)   died  in  the  year  1772. 

In  the  year  1774  Marc  Thomegay  presented  a  petition  to  the  Coun- 
cil of  Geneva,  apparently  in  the  interest  of  his  three  children  by  ]\Iar- 
tha  Powis  before  his  marriage  with  her,  in  which  he  stated  "that  in 
1734  he  went  to  England,  where  he  now  is,  that  one  of  the  first  ties 
he  formed  was  an  attachment  for  Miss  Martha  Powis,  whom  he  in- 
tended to  marry  as  soon  as  fortune  would  allow  him  to  do  so;  that 
thwarted  by  circumstances  and  encouraged  by  their  intention  to  marry 
one  another  as  soon  as  those  circumstances  would  permit,  they  yielded 
and  lived  together  for  several  years  as  husband  and  wife;  that  of  this 
intercourse  they  had  three  children."  Then  after  stating  the  names 
and  dates  of  the  births  and  baptisms  of  these  children,  as  above  set 
forth,  he  stated  "that  very  extraordinary  circumstances  thwarted  the 
resolution  he  had  formed  to  marry  Martha  Powis,  and  induced  him 
to  marry  Miss  Elizabeth  Woodhouse,"  and  stated  the  death  of  his 


568  PARTICULAR  SUBJECTS.  (Part  2 

wife  Elizabeth  and  his  subsequent  marriage  with  Martha  Powis.  Then 
the  petition  stated,  inter  aha,  that  the  petitioner  having  been  informed 
that  in  Geneva,  his  native  country,  subsequent  marriage  legitimised 
illegitimate  born  children,  made  application  in  order  to  prove,  by  the 
certificates  there  mentioned,  the  births  of  his  son  Marc,  and  his  daugh- 
ters Sarah  and  Elizabeth,  praying  the  Council  to  grant  him  record  of 
his  proofs  and  declarations,  so  that  no  one  might  question  to  his  above 
mentioned  three  children,  their  condition  of  legitimate  children  in 
Geneva,  his  native  country.  An  order  was  made  by  the  Council  grant- 
ing record  accordingly,  and  the  births  of  these  three  children  were 
entered  in  the  register  of  births  of  children  of  Genevese  parents  born 
in  foreign  parts. 

The  statements  contained  in  this  petition  were  borne  out  by  the  cer- 
tificates attached  thereto,  and  these  certificates  were  put  in  evidence  in 
this  action. 

Marc  Thomegay  made  his  will  on  the  9th  of  March,  1779,  describing 
himself  as  of  Tottenham,  in  the  county  of  Middlesex,  and  died  on 
the  2d  of  December,  1779.  From  the  will  it  appeared  that  he  was 
carrying  on  business  in  partnership  with  his  son,  and  was  entitled  to 
a  leasehold  house,  workshops,  and  premises  in  Moorfields,  within  the 
parish  of  St.  Leonard's,  Shoreditch.  It  did  not  appear  when  this 
lease  was  granted,  but  in  the  baptismal  certificates  of  1744  and  1745 
the  parents  were  described  as  of  Ayliffe  street,  and  Moorfields  was 
not  mentioned  in  any  certificate  until  the  year  1750. 

There  was  evidence  that  according  to  the  laws  of  the  canton  of 
Geneva  illegitimate  children  are  legitimated  by  the  subsequent  mar- 
riage of  their  father  and  mother,  notwithstanding  the  intervening  mar- 
riage of  their  father  with  another  woman. 

The  chief  clerk,  by  this  certificate  made  in  this  action,  in  substance 
left  to  the  court  the  question  whether  under  these  circumstances  Sarah 
Delom  and  the  other  two  children  born  of  Marc  Thomegay  and  Mar- 
tha Powis  during  their  cohabitation  were  to  be  taken  as  legitimate 
or  not;  and  found  that  if  Sarah  Delom  ought  to  be  treated  as  legiti- 
mate, then  the  next  of  kin  of  the  intestate  were  the  descendants  of 
the  said  Sarah  Delom,  who  were  represented  by  the  plaintiff,  and  that 
if  not,  such  next  of  kin  was  the  Falquet  family. 

The  further  consideration  came  on  for  hearing  before  Mr.  Justice 
Stirling  on  the  20th  of  July,  1887. 

[Here  follow  arguments  of  counsel  and  judgment  by  Stirling,  J.] 

The  plaintiff  appealed.  The  appeal  came  on  for  hearing  on  the  27th 
of  July,  1888. 

Fry,  L.  J.^°     I  agree  entirely  with  the  conclusion  arrived  at  by  the 

25  Tlie  concurring  opinions  of  Cotton  and  Lopes,  L.  JJ.,  and  a  part  of  the 
opinion  of  Fry,  L.  J.,  have  been  omitted.  Cotton  and  Lopes,  L.  JJ.,  held 
that  Marc  Thomegay  was  domiciled  in  England  at  the  birth  of  Sarah  Thome- 
gay, and  that  therefore  she  was  incapable  of  being  legitimized.  In  his  con- 
cun-ing  opinion  Cotton,  L.  J.,  said  in  part: 

"What  is  really  necessary,  I  think,  is  that  the  father  should  at  the  time  of 


Ch.    3)  FAMILY   LAW.  569 

Lord  Justice,  and  I  am  glad  to  say  that  I  also  agree  in  the  law  which 
he  has  laid  down,  but  the  facts  of  the  case  influence  my  mind  somewhat 
differently,  and  I  pick  my  way  through  those  facts  to  the  same  con- 
clusion by  a  somewhat  different  course.  I  will,  therefore,  endeavor  to 
state,  as  briefly  as  I  can,  the  view  I  take  of  this  case. 

The  appellant  claims  through  Sarah  Thomegay,  who  was  born  in 
1744,  in  this  country,  and  was  an  illegitimate  child  of  Marc  Thomegay 
and  A/lartha  Powis.  At  birth  that  child  took  the  domicil  of  its  mother 
and  it  took  the  status  of  illegitimacy,  according  to  the  law  of  the  domi- 
cil of  its  mother,  and  it  took  also  the  capacity  to  change  that  status 
of  illegitimacy  for  one  of  legitimacy,  provided  that  according  to  the 
law  of  the  domicil  of  the  father,  the  subsequent  marriage  would  work 
legitimation.  The  position  of  such  a  child,  therefore,  is  curious,  tak- 
ing domicil  and  status  from  the  mother,  but  taking  the  potentiality 
of  changing  its  status  from  the  putative  father.  That  I  take  to  be  the 
law  applicable  to  this  case,  and  that  gives  rise  to  the  first  question, 
what  was  the  domicil  of  the  father  in  the  year  1744?  According  to 
my  view  of  the  case  there  is  not  sufficient  evidence  to  lead  me  to  the 
conclusion  that  the  domicil  of  origin  had  been  changed  by  Marc 
Thomegay.     *     *     * 

If  his  domicil  were  English,  there  would  be  an  end  of  the  case; 
if  the  domicil  were  Genevese,  as  I  hold,  then  arises  the  second  ques- 
tion, which  is  this:  What  was  his  domicil  at  the  date  of  the  subse- 
quent marriage  of  the  parents  in  1755  ?  It  appears  to  me  that  the  dom- 
icil governs  the  effects  of  the  marriage.  That  I  take  to  be  the  gen- 
eral law,  and  it  is  so  laid  down  by  Mr.  Justice  Story,  in  the  l'89th  para- 
graph of  his  work  on  Conflict  of  Laws :  "In  a  general  sense  the  law 
of  the  matrimonial  domicil  is  to  govern  in  relation  to  the  incidents^ 
and  effects  of  marriage."  If,  therefore,  the  subsequent  marriage 
was  governed  by  the  English  domicil  it  would  seem  to  follow  that 
no  legitimation  can  take  eft"ect.  If,  on  the  contrary,  the  subsequent 
marriage  is  governed  by  Genevese  domicil  it  would  seem  that  sub- 


tle birth  of  the  child  be  domiciled  in  a  country  allowing  legitimation,  so  as 
to  give  to  the  child  the  capacity  of  being  made  legitimate  by  a  subsequent 
marriage.  But  it  is  the  subsequent  marriage  which  gives  the  legitimacy  to 
the  child,  who  has  at  its  birth,  in  consequence  of  its  father's  domicile,  the  ca- 
pacity of  being  made  legitimate  by  a  subsequent  marriage. 

"Where,  then,  must  that  marriage  be?  It  is  singular  that  there  is,  as  far 
as  I  am  aware,  no  express  decision  on  that  point.  But  this  is  probably  be- 
cause, as  a  rule,  when  the  parties  have  been  domiciled  at  the  time  of  the 
birth  in  a  country  allowing  legitimation  of  a  child  born  before  marriage,  that 
same  country  has  been  their  domicile  at  the  time  of  their  marriage.  As  I 
said  before,  the  place  of  birth  and  the  place  of  marriage  is  immaterial  to  the 
question  of  domicile.  In  the  absence  of  authority  the  incidents  and  the  ef- 
fects of  a  marriage  must,  in  my  opinion,  depend  on  the  domicile  of  the 
parties  at  the  time  of  the  marriage ;  and  it  will  be  strange  if  a  marriage  in 
England,  between  persons  domiciled  in  England,  could  produce  any  effect 
which  by  English  law  is  not  attributed  in  any  way  to  marriage."  40  Ch. 
Div.  232. 


570  PARTICULAR  SUBJECTS.  (Part  2 

sequent  legitimation  does  take  effect.  It  may  be,  though  on  this  point 
no  evidence  has  been  adduced,  that  the  Genevese  law  would  recognize 
an  English  marriage  as  legitimating  the  previously  born  issue.  Wheth- 
er that  be  so  or  not  I  do  not  know,  but  even  if  it  be,  my  conclusion  is, 
that  we  should  not  follow  the  Genevese  law,  if  it  gave  a  greater  effect 
to  a  marriage  contract  in  England  when  the  parents  have  an  English 
domicil,  than  the  English  law  gave  to  it ;  and  for  this  reason,  that 
the  state  imposes  on  all  persons  domiciled  in  it,  its  own  conclusions  as 
to  the  effect  of  marriage.  Here  again  I  would  refer  to  the  same 
paragraph  in  Mr.  Justice  Story's  Conflict  of  Laws,  where,  citing  the 
judgment  of  Lord  Robertson,  a  Scotch  judge,  he  says:  "Marriage  is 
a  contract  sui  generis ;  and  the  rights,  duties,  and  obligations  which 
arise  out  of  it  are  matters  of  so  much  importance  to  the  well-being  of 
the  state,  that  they  are  regulated  not  by  the  private  contract,  but  by 
the  public  laws  of  the  state,  which  are  imperative  on  all  who  are  domi- 
ciled within  its  territory."  I  would  remark  again,  that  I  entirely  agree 
with  what  has  been  said  by  Lord  Justice  Cotton,  with  regard  to  the 
effect  of  the  cases  of  Munro  v.  Munro,  7  CI.  &  F.  848,  and  Udny  v. 
Udny,  Law  Rep.  1  H.  L.  Sc.  441,  on  this  question  of  law,  and  I 
think  that  they  very  strongly  support  the  conclusion  which  I  have 
endeavored  to  express. 

Now,  that  being  so,  we  come  back  to  the  question  of  fact,  where 
was  Marc  Thomegay  domiciled  in  1755  when  he  contracted  marriage 
with  Martha  Powis?  In  my  judgment  his  domicil  was  English.  I 
think  we  have  a  case  in  which  residence,  so  far  as  we  can  tell,  origin- 
ally beginning  sine  animo  manendi  or  even  animo  revertendi,  has 
changed  its  character,  and  the  animus  manendi  has  grown  up  and  been 
manifested  in  the  meantime. 

The  facts  from  which  I  draw  m}^  conclusions  are  these:  We  have 
eleven  years  or  more  continuous  residence  in  this  country.  We  have, 
and  on  this  I  rely  very  greatly,  a  legitimate  marriage  contracted  with 
an  Englishwoman  according  to  the  rites  of  the  English  Church,  and 
the  birth  of  legitimate  issue  in  this  country,  and  their  baptism  accord- 
ing to  the  rites  of  the  English  Church.  More  than  that,  at  the  time  of 
the  second  marriage  he  must  be  taken  to  have  entered  into  another 
contract  with  an  Englishwoman,  this  time  casting  aside  the  illicit 
contract  which  had  existed  between  them  and  entering  into  a  lawful 
contract  of  marriage.  Further  than  that,  there  is  the  fact  that  by 
this  time  he  had  established  himself  in  leasehold  premises  in  Moor- 
fields,  apparently  carrying  on  business  on  his  own  account.  I  think, 
therefore,  taking  the  facts  down  to  1755,  that  the  true  conclusion  from 
them  is  different  from  what  it  was  in  1744;  that  at  the  later  date  he 
had  abandoned  his  domicil  of  origin,  and  had  assumed  England  as  his 
domicil;  and  that  consequently  the  English  law  of  marriage  must 
govern  the  effects  of  the  marriage  then  contracted,  and  that  English 
law  would  not  allow  subsequent  legitimation.     I  come,  therefore,  to 


Ch.    3)  FAMILY   LAW.  571 

the  same  conclusion,  though  by  a  somewhat  different  course,  as  that 
of  my  learned  Brother.     *     *     * 

The  appeal  will  be  dismissed  with  costs. ^' 


BLYTHE  V.  AYRES.      . 
(Supreme  Court  of  California,  1892.    96  Gal.  532,  31  Pac.  915,  19  L.  R.  A.  40.) 

This  action  was  instituted  under  section  1664  of  the  Code  of  Civil 
Procedure  by  Florence  Blythe,  a  minor,  through  her  guardian,  to  de- 
termine the  heirship  and  title  to  the  estate  of  Thomas  H.  Blythe,  de- 
ceased. Plaintiff's  claim  is  based  upon  sections  230,  1387,  respective- 
ly, of  the  Civil  Code  of  California.  Section  230  reads  as  follows: 
"The  father  of  an  illegitimate  child,  by  publicly  acknowledging  it  as 
his  own,  receiving  it  as  such,  with  the  consent  of  his  wife,  if  he  is  mar- 
ried, into  his  family,  and  otherwise  treating  it  as  if  it  were  a  legiti- 
mate child,  thereby  adopts  it  as  such;  and  such  child  is  thereupon 
deemed  for  all  purposes  legitimate  from  the  time  of  its  birth."  Sec- 
tion 1387  provides :  "Every  illegitimate  child  is  an  heir  of  the  person 
who,  in  writing,  signed  in  the  presence  of  a  competent  witness,  ac- 
knowledges himself  to  be  the  father  of  such  child."  The  facts  found 
by  the  court  were  substantially  (1)  that  plaintiff'  was  born  in  England 
December  18,  1873,  and  was  the  issue  of  Thomas  H.  Blythe  and  Julia' 
Perry;'  (2)  Julia  Perry  was  a  native  of  England,  domiciled  therein 
and  continued  to  reside  there  until  one  month  after  the  death  of 
Blythe;  (3)  that  plaintiff*  remained  in  England  until  after  the  death 
of  Blythe,  when  she  came  to  California,  and  that  Blythe  was  never  at 
any  time  within  any  of  the  countries  of  Europe  after  August  29,  1873 ; 
(4)  that  said  Blythe  was  a  citizen  of  the  United  States  and  of  the 
state  of  California,  domiciled  in  said  state,  and  died  intestate  therein, 
April  4,  188-3,  leaving  surviving  him  no  wife,  no  father,  no  mother,  and 
no  child,  save  and  except  Florence  Blythe;  (5)  that  Thomas  H. 
Blythe  and  Julia  Perry  were  never  married,  and  plaintiff  was  be- 
gotten while  Blythe  was  temporarily  sojourning  in  England,  and  was 
born  after  Blythe'e  return  to  California,  and  that  Blythe  never  was 
married. 

Evidence  was  introduced  showing  that  Blythe  in  his  letters  to  the 
plaintiff  had  often  spoken  of  her  as  his  daughter  and  had  provided 
means  for  her  support  and  education. 

The  trial  court  found  as  a  conclusion  of  law  that  Florence  Blythe 

26  See,  in  general,  65  L.  R.  A.  177-187;  Minor,  Conflict  of  Laws,  §§  97-101. 
Though  the  lex  domicilii  of  a  deceased  person  will  determine  the  classes  of 
persons  entitled  to  his  personal  estate,  the  membership  of  each  class  by  rea- 
son of  legitimacy  will  be  determined  by  the  law  creating  such  a  status.  In 
re  Goodman's  Trusts,  [1881]  17  Oh.  Div.  266;  In  re  Andros,  [1883]  24  Ch. 
Div.  637.  A  person  legitimated  by  the  proper  law  may  take  also  as  a  "child" 
under  a  devise  of  English  realty.     In  re  Grey's  Trusts,  [1892]  3  Ch.  88. 


572  PARTICULAR  SUBJECTS.  '  (Part  2 

was  legally  adopted  under  the  provisions  of  section  230  of  the  Civil 
Code  and  the  lawful  heir  of  Thomas  H.  Blythe.^^ 

Garoutte;,  J.2^  [After  holding  that  the  word  "adopts,"  used  in 
section  230,  was  used  in  the  sense  of  "legitimates,"  the  learned  jus- 
tice continued:] 

The  section  is  broad  in  its  terms.  It  contains  no  limitations  or 
conditions,  and,  to  tlie  extent  of  the  power  vested  in  the  legislature 
of  the  state,  applies  to  all  illegitimates,  wherever  located,  and  wherever 
born.  The  legislature  has  not  seen  fit  to  make  any  exception  to  its 
operation,  and,  as  was  said  by  Chief  Justice  Taney  in  Brewer  v. 
Blougher,  14  Pet.  178,  10  L.  Ed.  408,  when  considering  a  quite  simi- 
lar provision  of  a  statute:  "In  the  case  before  us  the  words  are  gen- 
eral, and  include  all  persons  who  come  within  the  description  of  il- 
legitimate children;  and  when  the  legislature  speaks  in  general  terms 
of  children  of  that  description,  without  making  any  exceptions,  we 
are  bound  to  suppose  they  design  to  include  the  whole  class."  Bar, 
in  his  work  on  International  Law  (page  434)  says:  "Legitimation  of 
bastards,  either  by  subsequent  marriage  or  by  an  act  of  the  govern- 
ment (rescriptum  principiis),  is  nothing  but  a  legal  equalization  of  cer- 
tain children  illegitimately  begotten  with  legitimate  children."  In 
other  words,  the  object  and  effect  of  section  230  is  to  change  the  status 
and  capacity  of  an  illegitimate  child  to  the  status  and  capacity  of  a  child 
born  in  lawful  wedlock. 

*  This  case,  upon  its  facts,  presumably  stands  alone  in  legal  juris- 
prudence, for  counsel  in  the  exercise  of  great  learning  and  iniexampled 
industry  have  failed  to  parallel  it.  We  have  here  a  father  at  all 
times  domiciled  in  the  state  of  California,  a  mother  at  all  times 
domiciled  in  England,  and  an  illegitimate  child  born  in  England, 
and  continuously  there  residing  until  the  death  of  her  father  in  Cali- 
fornia. As  to  the  effect  of  our  statutes  upon  such  a  state  of  facts, 
the  consideration  of  the  matter  of  domicile  of  these  parties,  and  the 
principles  of  law  applicable  thereto,  is  a  most  important  element  to  its 
proper  determination,  and  it  is  a  source  of  some  satisfaction  to  be 
able  to  say  that  there  are  elementary  principles  pertaining  to  this  sub- 
ject of  domicile,  even  though  few  in  number,  upon  which  practically 
all  the  text  writers  stand  on  common  ground,  to  wit:  (1)  The  domi- 
cile of  the  mother  is  the  domicile  of  the  illegitimate  child,  and  the  place 
of  birth  of  the  child  is  an  immaterial  element.  (2)  In  a  case  of 
legitimatio  per  subsequens  matrimonium  the  place  of  marriage  does 
not  affect  the  question.  (3)  Legitimation  by  a  subsequent  marriage 
depends  upon  the  law  of  the  domicile  of  the  father.  Dicey,  Dom.  p. 
181,  and  other  text  writers,  supported  by  many  authorities,  holding 
that  the  domicile  of  the  father  at  the  date  of  the  birth  is  the  vital 


2  7  The  statement  of  facts  has  been  abstracted  from  the  opinion  of  Gar- 
outte, J. 

28  Only  a  part  of  the  opinion  of  Garoutte,  J.,  is  given. 


Ch.    3)  FAMILY  LAW.  573 

inquiry,  and  other  authority;  Fras.  Parent  &  Child,  p.  52;  Bar,  Int. 
Law,  p.  434;  and  Sav.  Priv.  Int.  Law,  p.  303— holding  that  the  dom- 
icile of  the  father  at  the  date  of  marriage  is  the  determinative  fact, 
inasmuch  as  the  deceased,  Blythe  was  domiciled  in  California  both 
at  the  time  of  the  birth  of  the  child  and  at  the  time  he  performed  the 
acts  which  it  is  claimed  resulted  in  legitimation,  this  question  does  not 
become  an  issue  in  the  case,  and  we  are  not  called  upon  to  dispel  the 
clouds  of  doubt  that  envelope  it. 

The  rrmj-fntio^  '^^  appellants  that  the  status  .of_a  person  residing:  in 
a  foreign  country,  and  a -si ilTjert  JJi£reo fTcannot  be  changed  by  ^^ts_ 
perforrii^Tl-lfrXalifornia  under_a^provisIorr~5f— th^"1few  of  our  staifij 
legislature,  cannot  be  supported  as^  a  rule  wlftTfflltiniaiv^  exceptions, _^ 
and  to  the  extent^of  those  exceptiqnsastatejaw  muslJbe  heldTby  its^ 
own  courtsatJeasty-tQ^jiave  extraterritorial  operation  uapd  this  prin- 
ciple of  tHeToreign  operation  of  state  laws  even  goes  to  tlie  extent 
that  in  many  instances  such  laws  are  recognized  and  given  effect  by 
*the  courts  of  that  particular   foreign  jurisdiction.     The   doctrine  of 
extraterritorial  operation  of  state  laws  is  fully  exemplified  in  the  case 
of  Hoyt  V.  Thompson,  5  N.  Y.  340.     *     *     * 

Section  215  of  the  Civil  Code  is  as  follows:  "A  child  born  before 
wedlock  becomes  legitimate  by  the  subsequent  marriage  of  its  par- 
ents." This  section  takes  a  wide  range.  Its  operation  is  not  confined 
within  state  lines.  It  is  as  general  as  language  can  make  it.  Oceans 
f urnish^lO-QbstnactionjtQ,  the^effect_pf  its  wise  and  beneficent  provi- 
sions, i  It  is  mannaJig  the  bastards  of^the^worH^  If  Blythe,  subsequent 
to  the  birth  of  plaintiff,  had  returned  to  Hligland,  and  married  Julia 
Perry,  such  marriage,  under  the  provision  of  law  just  quoted,  ipso 
facto  would  have  resulted  in  the  legitimation  of  Florence  Blythe. 
Then,  in  answer  to  the  interrogatory  of  appellants  already  noticed, 
we  say  that  she  was  so  domiciled  that  by  the  laws  of  California  she 
could  have  been  changed  from  bastardy  to  legitimacy.  Our  statute, 
conjoined  with  principles  of  international  law,  would  have  changed 
her  bastardy  to  legitimacy  in  the  world  at  large;  and  regardless  of 
international  law,  and  regardless  of  all  law  of  foreign  countries,  our 
statute  law  alone  would  have  made  her  legitimate  in  the  world  at  large, 
whenever  and  however  that  question  should  present  itself  in  the 
courts  of  California.  And  we  also  have  here  a  most  striking  illustra- 
tion of  the  extraterritorial  operation  of  California  law.  We  have  the 
effect  of  a  statute  of  this  state  attaching  to  a  state  of  facts  where  the 
mother  and  child  were  never  in  California,  but  residing  and  domiciled 
in  England,  and  the  marriage  taking  place  in  England;  and  California 
law,  as  stated,  has  the  effect  upon  that  child  to  give  it  a  different  dom- 
icile, and  completely  change  its  status.  Such  would  not  only  be  the 
effect  of  this  law  upon  the  child  viewed  by  California  courts,  but 
such  would  be  its  effect  viewed  by  the  courts  of  England,  where  the 
child  was  domiciled,  and  that,  too,  notwithstanding  no  provisions  of 
law  are  there  found  for  the  legitimation  of  bastards.    This  assumption 


o74  PARTICULAR  SUBJECTS.  (Part  2 

of  Blythe's  marriage  to  Julia  Perry  in  its  facts  forms  an  exact  photo- 
graph of  the  celebrated  case  of  Munro  v.  Munro,  found  in  1  Rob. 
Scot.  App.  H.  L.  492;  a  case  crystallizing  the  judicial  thought  of  the 
age  upon  the  subject,  and  commanding  the  respect  of  all  writers  and 
judges  upon  the  law  of  domicile.     *     *     * 

Appellants  insist  that  the  domicile  of  the  child  irrevocably  fixes  that 
child's  status.  In  this  case,  subsequent  "to  the  child's  birth,  Julia  Perry 
married  a  domiciled  Englishman ;  hence  her  domicile  was  permanently 
established  in  England,  and  for  that  reason  the  child's  domicile,  being 
the  mother's  domicile,  was  permanently  established  there.  Under  ap- 
pellants' reasoning  this  state  of  facts  would  forever  debar  the  child 
from  legitimation,  for  even  its  presence  in  California  would  avail 
nothing  as  against  its  English  domicile.  If  such  be  good  law,  section 
226  of  the  Civil  Code,  expressly  authorizing  the  adoption  of  minors  of 
other  states,  is  bad  law,  for  it  is  squarely  in  conflict  with  those  views. 

We  find  in  Story's  work  upon  Conflict  of  Laws  (section  105a)  the 
following:  "Sixth.  As  to  issue  born  before  the  marriage,  if  by  the 
law  of  the  country  where  they  are  born  they  would  be  legitimated  by  the 
subsequent  marriage  of  their  parents,  they  will,  by  such  subsequent 
marriage,  (perhaps  in  any  country,  but  at  all  events  in  the  same  coun- 
try,) become  legitimate,  so  that  this  character  of  legitimacy  will  be 
recognized  in  every  other  country.  If  illegitimate  there,  the  same  char- 
acter will  belong  to  them  in  every  other  country.-"  But  Judge  Story's 
citations  in  its  support  do  not  clearly  bear  him  out,  and  legal  authority 
to  the  effect  that  the  place  of  birth  forms  no  element  in  the  case  vast- 
ly preponderates. 

[The  learned  justice  here  examined  Loring  v.  Thorndike,  5  Allen, 
257,  In  re  Grove,  L.  R.  40  Ch.  Div.  216,  Shedden  v.  Patrick,  1  Macq. 
535,  Ross  V.  Ross,  129  Mass.  243,  37  Am.  Rep.  321,  Miller  v.  Miller, 
91  N.  Y.  315,  43  Am.  Rep.  669,  Birtwhistle  v.  Vardill,  2  Clark  &  F. 
840,  Foster  v.  Waterman,  124  Mass.  592,  Lolley's  Case  (1812)  Russ. 
&  R.  237,  and  Hawbecker  v.  Hawbecker,  43  ]\Id.  516,  and  continued  as 
follows:] 

We  have  quoted  thus  extensively  from  the  authorities  upon  the 
subject  of  domicile  as  especially  bearing  upon  the  question  of  legiti- 
matio  per  subsequens  matrimonivim  for  the  reason  that  we  are  unable 
to  perceive  any  difference  in  the  general  principles  of  law  bearing 
upon  that  character  of  legitimation  and  in  those  principles  bearing  upon 
other  forms  of  legitimation  authorized  by  the  same  statute.  The  only 
distinction  claimed  by  appellants  is  that  legitimation  founded  upon 
subsequent  marriage  is  based  upon  the  fiction  of  law  that  a  previous 
consent  existed,  and  the  marriage  related  back  to  that  time.  Upon 
this  point  it  would  seem  all-sufificient  to  say  that  our  statute  does  not 
recognize  such  a  fiction,  and  its  effective  operation  in  no  wise  depends 
upon  the  assumption  of  its  presence.  Times  are  not  what  they  once 
were,  and  we  live  in  an  age  too  practical  to  build  our  law  upon  the  un- 
stable  foundation   of  fictions.     In   Birtwhistle  v.   Vardill,  2   Clark  & 


Ch.    3)  FAMILY  LAW.  575 

F.  840,  Lord  Chief  Justice  Tyndal,  in  speaking  upon  this  question, 
says :  "Pothier,  on  the  other  hand,  when  he  speaks  of  the  effect  of  a 
subsequent  marriage  in  legitimating  children  born  before  it,  disclaims 
the  authority  of  the  canon  law;  nor  does  he  mention  any  fiction  of  an 
antecedent  marriage,  but  rests  the  eft'ect  upon  the  positive  law  of  the 
country.  He  first  instances  the  custom  of  Troyes,  and  then  adds 
*  *  *  that  it  is  a  common  right  received  throughout  the  whole 
kingdom."  Schouler,  Dom.  Rel.  §  326,  says :  "The  principle  to  which 
the  law  of  legislation  per  subsequens  matrimonium  is  to  be  referred 
has  been  a  subject  of  controversy.  The  canonists  base  the  la\V,  not 
on  general  views  of  expediency  and  justice,  but  upon  a  fiction,  which 
they  adopted  in  order  to  reconcile  the  new  law  with  established  rules, 
for,  assuming  that  as  a  general  rule  children  are  not  legitimate  un- 
less born  in  lawful  wedlock,  they  declared  that  by  a  fiction  of  law 
parents  were  married  when  the  child  was  born.  Such  reasoning — 
by  no  means  uncommon  when  the  wise  saw  more  clearly  what  was 
right  than  why  it  was  so — has  not  stood  the  test  of  modern  logic,  and 
the  Scotch  courts  have  placed  the  rule  once  more  where  its  imperial 
founders  left  it,  namely,  on  the  ground  of  general  policy  and  justice." 

Upon  principle  no  distinction  can  be  made  between  the  rules  of 
law  applicable  to  these  various  forms  of  legitimation.  Many  of  the 
states  of  this  Union,  in  order  to  effect  those  ends,  require,  in  addi- 
tion to  a  subsequent  marriage,  that  the  father  (in  some  states  both 
father  and  mother)  shall  also  acknowledge  the  child.     *     *     * 

Legitimation  is  the  creature  of  legislation.  Its  existence  is  solely 
dependent  upon  the  law  and  policy  of  each  particular  sovereignty. 
The  law  and  policy  of  this  state  authorize  and  encourage  it,  and  there 
is  no  principle  upon  which  California  law  and  policy,  when  invoked 
in  California  courts,  shall  be  made  to  surrender  to  the  antagonistic 
law  and  policy  of  Great  Britain.  It  was  said  in  ]\Iunro  v.  Munro,  1 
Rob.  Scot.  App.  H.  L.  492 :  "We  are  here  in  a  Scotch  question,  and  in 
a  Scotch  court  applying  a  plain  rule  of  our  law,  and  unless  that  law 
says  that,  if  a  child  be  born  in  England,  it  shall  not  have  the  benefit 
of  the  rule,  we  do  not  see  how  that  it  is  at  all  material  that  it  could 
not  enjoy  it  if  the  law  of  England  were  to  be  applied  to  the  case ;" 
and  again:  "We  are  not  inquiring  what  the  law  of  England  might 
decide  if  the  person  were  making  a  claim  in  an  English  court  of  law 
in  respect  of  property  within  their  jurisdiction."  And  we  say  here 
plaintiff  was  the  child  of  Blythe,  who  was  a  domiciled  citizen  of  the 
state  of  California.  She  founds  her  claim  upon  the  statutes  of  this 
state,  and  is  now  here  invoking  the  jurisdiction  of  the  courts  of  this 
state.  It  is  a  question  of  California  law,  to  be  construed  in  California 
courts,  and  we  see  nothing  in  our  constitution  or  statutory  law,  or  in 
international  law,  to  have  prevented  Blythe  from  making  the  plaintiff 
his  daughter  in  every  sense  that  the  word  implies.  In  conclusion, 
we  hold  that  Blythe,  being  domiciled  in  the  state  of  California  both 
at  the  time  of  the  birth  of  plaintiff  and  at  the  time  he  performed  the 


576  PARTICULAR  SUBJECTS.  (Part  2 

acts  which  it  Is  claimed  resulted  in  the  legitimation  of  plaintiff,  and 
California  law  authorizing  the  legitimation  of  bastards  by  the  doings 
of  certain  acts,  it  follows  that  Florence  Blythe,  the  plaintiff,  at  all 
times  was  possessed  of  a  capacity  for  legitimation  under  section  230 
of  the  Civil  Code  of  this  state. 

[The  learned  justice  here  examined  the  evidence  and  concluded 
that  the  acts  of  Blythe  brought  Florence  within  the  requirements  of 
section  230  of  the  statute.] 

Judgment  affirmed.^* 


^ 


,-11 

^  IRVING  V.  FORD. 

(Supreme  Judicial  Court  of  Massachusetts,  1903.    183  Mass.  44S,  67  N.  E.  366, 
65  Lr.  R.  A.  177,  97  Am.  St.  Rep.  447.) 

Lathrop,  J.  The  question  which  arises  in  this  case  is  that  left 
Undecided  when  the  parties  were  before  us  on  a  petition  to  the  pro- 
bate court  to  amend  the  record  of  a  petition  for  administration  of 
the  estate  of  Robert  Irving,  otherwise  known  as  Sheridan  W.  Ford, 
by  substituting  the  name  of  the  petitioner  and  his  mother  as  the  next 
of  kin,  and  to  remove  the  administrator  appointed  on  an  earlier  peti- 
tion. See  Irving  v.  Ford,  179  Mass.  216,  60  N.  E.  491.  The  case  is 
now  before  us  on  an  appeal  from  a  decree  of  the  probate  court  on  a 
petition  asking  that  the  petitioner  be  allowed  one-third  of  the  estate  of 
Sheridan  W.  Ford,  claiming  to  be  entitled  thereto  as  a  son. 

For  the  purposes  of  this  case,  it  must  be  considered  as  settled  by  the 
previous  decision  that  the  so-called  marriage  between  the  petitioner's 
father  and  mother  in  Virginia  while  both  were  slaves  was  void,  and 
that  the  marriage  between  the  common  father  of  the  petitioner  and  of 
the  respondent  in  Massachusetts  was  valid,  and  that  the  respondent, 
and  not  the  petitioner,  is  the  legitimate  son  of  Sheridan  W.  Ford, 
unless  the  statute  of  Virginia  passed  on  February  27,  1866,  makes 
him  a  legitimate  child  in  this  state.  This  statute  declared  that  all 
colored  persons  cohabiting  together  on  February  27,  1866,  should  be 
deemed  husband  and  wife,  and  all  their  children  legitimate,  whether 
born  before  or  after  the  passage  of  the  act.  The  father  and  mother 
of  the  petitioner  were  not  then  cohabiting  together,  and  the  petitioner's 
claim  is  based  upon  the  last  clause  of  the  act,  which  reads  as  follows : 
"And  when  the  parties  have  ceased  to  cohabit  before  the  passage  of 
this  act,  in  consequence  of  the  death  of  the  woman,  or  from  any  other 
cause,  all  the  children  of  the  woman,  recognized  by  the  man  to  be  his, 
shall  be  deemed  legitimate."  Acts  1865-66,  p.  85,  c.  18,  §  2.  At  the 
time  of  the  passage  of  this  act  the  petitioner's  domicile  was  in  Vir- 
ginia, and  the  domicile  of  Sheridan  W.  Ford  was  in  Massachusetts. 

29  Patterson  and  Sharpstein,  JJ.,  concurred.  McFarland  and  De  Haven,  JJ., 
concurred  upon  the  ground  that  plaintiff  was  the  heir  of  Blythe  under  sec- 
tion 1387  of  the  Civil  Code.    Beatty,  C.  J.,  and  Harrison,  J,,  did  not  sit. 


Ch.    3)  FAMILY  LAW.  577 

We  are  unable  to  see  any  ground  upon  which  the  state  of  Virfflnia 
can  imposejupon  a  person  having  his  domicile  in  Alassachusetts  a 
legtrrmgfe^n^-adien  hy  our  law  heis  illegitimate.  By  our  law  it  is 
provided,  "An  illegitimate  child  whose  parents  have  intermarried,  and 
whose  father  has  acknowledged  him  as  his  child,  shall  be  considered 
legitimate."  Pub.  St.  1882,  c.  125,  §  5  (Rev.  Laws,  c.  133,  §  5).  The 
Virginia  act  makes  mere  acknowledgment  sufficient,  while  our  law  re- 
quires both  marriage  and  acknowledgment.  The  law  which  governs 
this  case  is  well  stated  by  Mr.  Minor  in  his  treatise  on  the  Conflict  of 
Laws,  §  100.  After  stating  the  question,  which  domicile  should  gov- 
ern when  the  act  of  legitimation  is  not  marriage,  but  mere  acknowl- 
edgment, or  a  statute  of  a  state,  and  the  bastard  has  his  domicile  in 
one  state,  and  his  father  in  another,  he  proceeds :  "Two  points  should 
be  noticed  in  this  connection,  which  will  aid  us  to  determine  the  proper 
law  in  this  case.  The  first  is  that  the  legitimation  of  a  bastard  is  the 
creation  of  a  status  which  is  beneficial  to  him,  and  it  should  be  pre- 
sumed in  his  favor  whenever  adequate  reason  exists  for  such  a  course. 
The  second  is  that  this  beneficial  status  cannot  be  accorded  the  infant 
at  the  expense  of  a  change  of  status  on  the  part  of  the  father  not  war- 
ranted by  his  domiciliary  law.  Applying  these  two  principles,  it  fol- 
lows that  the  law  of  the  father's  domicile  at  the  time  of  the  legit ij]Tat:i_ 
ing  act  will  be  the  proper  law  to  determine  the  status  of  both  parties^ 
If  ^by  that  law  the  act  in  question  legitimates  the  bastard,  the  hene- 
ficial  status  thus  created  wilL  in^^eneral  be  recognized  everywhere, 
including  the^baitard's  domicile,  thougH  bv  the  law  of  the  latter  state 
the  act  would  no^  suffice jto  create  a  legitimation.  On  the  other  hand, 
if,  by  the  law  of  the  father^s  domicile,  legitimation  is  not  the  result 
of  the  act  claimed  to  have  that  effect,  though,  under  the  bastard's 
domiciliary  law,  legitimation  would  result  therefrom,  the  status  of 
legitimation  should  not  be  conferred  upon  the  bastard,  for  that  would 
be  to  subject  the  status  of  the  father  to  a  law  to  which  it  is  not  prop- 
erly subject."  In  Lingen  v.  Lingen,  45  Ala.  410,  the  domicile  of  the 
father  was  in  Alabama.  The  illegitimate  child  was  born  in  France, 
having  a  French  woman  for  its  mother.  The  father,  while  in  France, 
acknowledged  the  child  to  be  his,  but  he  did  not  marry  the  woman. 
This  acknowledgment  was  sufficient  in  France  to  make  the  child  legiti- 
mate, but  not  in  Alabama.  It  was  held  that  the  legitimation  was  gov- 
erned by  the  law  of  the  father's  domicile,  and  not  by  that  of  the  bas- 
tard. See,  also,  Wharton,  Confl.  of  Laws,  §  246.  So  in  Loring  v. 
Thorndike,  5  Allen,  257,  263,  where  a  citizen  of  this  commonwealth 
had  an  illegitimate  child  born  in  Germany,  and  afterwards  married 
the  mother  in  that  country,  and  acknowledged  the  child  there,  the 
legitimacy  of  the  child  was  determined  by  the  provision  of  Rev.  St. 
1836,  c.  61,  §  4.  See,  also,  Morris  v.  Williams,  39  Ohio  St.  554; 
Blythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40. 

It  may  be  conceded  that  if__the  father  of  the  petitioner  had  been 
domiciled  in  Virginia  in  1866,  when  the  statute  in  question  was  passed^ 
LoR.CoNF.L.— 37 


578  PARTICULAR  SUBJECTS.  (Part  2 

or  wli£n_iie^_acknQivledg'ed  the  petitioner  as  his  son,  the  petitioner 
would  have_  acquired  a  status  as  a  legitimate  son  which  would  be 
recognizedJiereT~~Kcott  V.  Key,  iTXa.  Ann.  232;  Miller  v.  Miller, 
91  N.~Yr315,^3  Am.  Rep.  669.  See,  also,  Ross  v.  Ross,  129  Mass. 
243,  37  Am.  Rep.  321.  There  are,  however,  decisions  to  the  contrary. 
Smith  V.  Derr's  Adm'rs,  34  Pa.  126,  75  Am.  Dec.  641 ;  Williams  v. 
Kimball,  35  Fla.  49,  16  South.  783,  26  L.  R.  A.  746,  48  Am.  St.  Rep. 
238. 

But  as  the  petitioner's  father,  when  the  statute  was  passed  and  when 
the  acknowledgment  was  made,  was  domiciled  in  this  commonwealth, 
the  question  of  the  petitioner's  legitimacy  must  be  determined  by  our 
law,  which  does  not  recognize  acknowledgment  alone  as  legitimation; 
and  the  order  must  be :    Decree  of  probate  court  affirmed. 


MILLER  V.  MILLER. 

(Court  of  Appeals  of  New  York,  1883.    91  N.  Y.  315,  43  Am.  Rep.  G69.) 

This  was  an  action  of  ejectment. 

Miller,  J.     By  the  statute  of  this  state  the  real  estate  of  an  intes- 
tate passes  in  the  first  instance  to  his  lineal  descendants.     Rev.   St. 
(1st  Ed.)  pt.  2,  c.  2,  tit.  5,  §§  1,  2.     It  is  also  provided  that  "children 
^*\^*and  relatives  who  are  illegitimate  shall  not  be   entitled  to  inherit." 
*    '     Rev.  St.    (1st  Ed.)    §  19.     The  plaintiff  is  a  child  of  the  deceased 
under  whom  he  claims  and  one  of  his  lineal  descendants.     He  was 
born  in  the  kingdom  of  Wurtemburg  in  the  year  1845,  before  the 
^p   '  '  marriage  of  his  parents,  and  the  question_ta-h.e.deLexniin£d_is--iidiether 

^        /Oi    •  he  was Jegiti mate  at.  tlie^  time-^oTjhejieath^  of  his  father.    At  the  time 

'i^  C«^  \i  *  "of  his  birth  his  father  and  mother  were  domiciled  and  resided  at  Wur- 
^k.  tV-  A  t  '  temburg.  A  statute  found  in  the  Laws  of  1610  of  that  kingdom  at 
'^    '^  *  -*^      title  17,  §  4,  is  as  follows :    "Whatever  is  decreed  in  the  foregoing 

title  regarding  the  inheritance  of  children  born  in  lawful  wedlock  shall 
be  applicable  also  to  such  children  as  are  begotten  of  two  persons 
unmarried  (but  not  too  closely  related  for  their  bethrothal  or  lawful 
conjugal  cohabitation)  and  who  first  became  legitimate  by  a  subse- 
quent marriage  of  their  parents,  shall  be  held  equal  to  those  children 
who  are  born  in  lawful  wedlock  as  regards  the  right  of  inheritance 
from  its  parents,  brothers  and  sisters  and  other  relatives  as  in  all 
other  respects."  Any  subsequent  marriage  of  the  parents  of  the 
plaintiff  would,  therefore,  render  him  legitimate  at  the  place  of  his 
birth  and  the  domicile  of  himself  and  parents — Wurtemburg,  and  if 
the  father  had  resided  at  Wurtemburg  at  the  time  of  his  decease,  plain- 
tiff would  have  been  one  of  his  lawful  descendants,  the  same  as  though 
he  had  been  born  in  wedlock. 

The  plaintiff  with  his  parents  subsequently  removed  to  the  state 
of  Pennsylvania,  and  his  father  became  a  citizen  of  the  United  States 


Ch.    3)  FAMILY  LAW.  579 

by  naturalization,  and  while  domiciled  there  and  in  the  year  1853  his 
parents  were  lawfully  married.  In  1862  the  family  removed  to  this 
state,  where  they  lived  until  the  death  of  the  father  in  1875.  The  real 
estate  in  question  was  purchased  by  plaintiff's  father  after  his  re- 
moval to  this  state  and  he  owned  the  same  in  fee  at  the  time  of  his 
death. 

We  think  that  by  the  law  of  the  domicile  of  the  plaintiff's  birth, 
Wurtemburg,  and  by  the  subsequent  marriage  of  his  parents,  the  plain- 
tiff was  legitimated  in  the  state  of  Pennsylvania.  Be  that  as  it  may, 
however,  in  the  year  1857  a  law  was  passed  by  the  Legislature  of 
the  state  of  Pennsylvania  which  declared  that:  "In  any  and  every 
case  where  the  father  and  mother  of  an  illegitimate  child  or  children 
shall  enter  into  the  bonds  of  holy  wedlock  and  cohabit,  such  child 
or  children  shall  thereby  become  legitimated  and  enjoy  all  the  rights 
and  privileges  as  if  they  had  been  born  during  the  wedlock  of  their 
parents."  See  Brightly's  Purdon's  Digest  (Ed.  1873)  1004,  §  9. 
The  above  act  was  followed  by  an  act  passed  in  1858,  by  which  the 
provision  cited  was  made  applicable  to  all  cases  arising  prior  to  1857, 
unless  some  interest  had  become  vested.  As  the  real  estate  which 
is  the  subject  of  this  controversy  had  not  been  acquired  prior  to  the 
acts  referred  to,  no  vested  interest  existed  which  conflicted  with  the 
acts  cited.  It  is  very  evident  that  the  plaintiff  after  the  passage  of 
the  above  laws  was  a  legitimate  child  and  entitled  to  all  the  rights 
and  privileges  of  a  lineal  descendant  of  his  parents.  If  his  father 
had  died  in  the  state  of  Pennsylvania  seized  of  real  estate  it  cannot  be 
questioned  that  any  doubt  would  arise  in  regard  to  his  claim  thereto. 
He  was  invested  with  all  the  rights  of  a  citizen  entitled  to  inherit  such 
portion  of  his  father's  estate  as  the  law  allowed  to  legitimate  children. 
Occupying  this  position  can  it  be  said  that  the  plaintiff  lost  such  right 
because  his  father  moved  out  of  the  state  of  Pennsylvania  and  located 
in  the  state  of  New  York?  Could  he  be  legitimate  in  one  state  and 
illegitimate  in  another?  Such  a  rule  would  render  the  right  of  in- 
heritance, sanctioned  by  the  law  of  the  state  where  he  resided,  one 
of  great  uncertainty  and  fluctuation,  and  in  many  cases  it  would  oper- 
ate so  as  to  produce  great  injustice.  While  the  power  of  the  Legisla- 
ture is  paramount  unless  restricted  by  constitutional  authority,  it  should 
not  be  upheld  where  its  effect  may  be  to  produce  great  wrongs,  unless 
imperatively  demanded.  Any  other  rule  would  leave  the  plaintiff, 
whose  status  was  fixed  by  the  laws  of  Pennsylvania,  subject  to  the 
change  of  statutes  in  any  state  where  he  might  have  occasion  to  re- 
side, whose  laws  dift'ered  from  the  former  state.  Assuming  that  the 
plaintiff  by  the  laws  of  the  state  of  Pennsylvania  was  legitimate,  the 
question  arises  whether  that  legitimacy  was  carried  with  him  when 
his  father  and  family  removed  to  the  state  of  New  York.  If  the 
plaintiff"  labored  under  any  disability  in  the  state  of  New  York  it 
arose  by  reason  of  the  provisions  of  law  contained  in  the  statutes  of 
that  state  already  cited.    Rev.  St.  (1st  Ed.)  pt.  2,  c.  2,  tit.  5,  §  19. 


580  PARTICULAR  SUBJECTS.  (Part  3 

The  law-making  power  can  declare  a  child  born  to  be  legitimate  or 
illegitimate,  and  it  is  only  that  power  which  fixes  and  determines  the 
status  of  children  born.  If  born  before  marriage  the  Legislature  can 
remove  the  disability  of  its  illegitimacy,  and  by  its  transcendant  power 
can  legitimatize  and  make  capable  of  inheriting  the  illegitimate  child. 
Blackstone,  4  Inst.  36.  If  this  had  been  done  by  an  act  of  the  Legis- 
lature of  the  state  of  New  York,  no  question  could  arise  as  to  the 
legitimacy  of  the  plaintiff  or  his  right  to  inherit.  The  statutes  of  this 
state,  to  which  we  have  referred,  do  not  contain  the  words  "born  out 
of  wedlock,"  or  the  word  "bastard."  The  English  statute  of  Merton, 
so  called  (St.  20  Hen.  Ill,  c.  9),  not  only  required  that  a  child,  in  order 
to  inherit,  should  be  legitimate,  but  also  that  "he  should  be  born  in 
lawful  wedlock  as  well."  This  constitutes  a  marked  difference  be- 
tween that  statute  and  the  statute  of  this  state  cited  supra.  Legiti- 
macy, which  was  conferred  upon  the  ^plaintiff  by  the  laws  of  Penn- 
sylvania, to  which  reference  has  been  had,  constituted  a  portion  of  his 
rights  and  accompanied  him  wherever  he  might  reside.  Being  legiti- 
mate in  the  state  of  Pennsylvania,  he  continued  so  in  every  state  and 
in  every  country  where  he  chose  to  establish  his  residence.  The  rule 
seems  to  be  well  settled  that  the  law  of  the  domicile  of  origin  governs 
the  state  and  condition  of  a  person  in  whatever  country  he  may  re- 
move to.  The  status  of  legitimacy  which  arises  under  the  law  of  one 
nation  is  recognized  by  other  nations  according  to  the  authorities. 
Story  lays  down  the  rule  in  his  Conflict  of  Laws  (section  93)  that 
■'foreign  jurists  generally  maintain  that  the  question  of  legitimacy 
or  illegitimacy  is  to  be  decided  exclusively  by  the  law  of  the  domicile 
of  origin,"  He  also  says  at  section  93b:  "It  seems  admitted  by  for- 
eign jurists,  that  as  the  validity  of  the  marriage  must  depend  upon 
the  law  of  the  country  where  it  is  celebrated,  the  status  or  condition  of 
their  offspring,  as  to  legitimacy  or  illegitimacy,  ought  to  depend  on 
the  same  law,  so  that  if  by  the  law  of  the  place  of  the  marriage  the 
offspring,  although  born  before  marriage,  would  be  legitimate,  they 
ought  to  be  deemed  legitimate  in  every  other  country  for  all  purposes 
whatever,  including  heirship  of  immovable  property."  Wheaton,  in 
his  Law  of  Nations,  at  page  172,  says:  "Legitimacy  or  illegitimacy 
are  among  universal  personal  qualifications,  and  the  laws  of  the  state 
affecting  all  these  personal  qualities  of  its  subjects  travel  with  them 
wherever  they  go  and  attach  to  them  in  whatever  covmtry  they  may 
be  resident."  The  general  current  of  authority  favors  the  doctrine 
that  where  an  illegitimate  child  has  been  legitimated  by  the  subse- 
quent marriage  of  its  parents  according  to  the  laws  of  the  state  or 
country  where  the  marriage  takes  place  and  the  parents  are  domiciled, 
such  legitimacy  follows  the  child  wherever  it  may  go.  This  rule  is, 
as  we  have  seen,  fully  sustained  by  the  authorities  to  which  we  have 
referred.  The  learned  Judge  Story,  in  his  Conflict  of  Laws,  devotes 
nearly  the  entire  fourth  chapter,  and  no  inconsiderable  portion  of  the 
work,  to  the  consideration  of  the  question  involved  in  the  case  at  bar, 


Ch.    3)  FAMILY   LAW.  581 

and  he  asserts  the  rule,  that  if  a  person  is  leg-itimated  in  a  country 
where  domiciled,  he  is  leg-itimate  everywhere  and  entitled  to  all  the 
rights  flowing  from  that  status,  including  the  right  to  inherit.  He  ar- 
rives at  this  conclusion  after  an  examination  and  exhaustive  discus- 
sion of  the  subject  and  after  a  comparison  of  the  views  of  different 
writers  upon  civil  law,  quoting  extensively  from  the  same. 

In  support  of  the  same  general  doctrine  which  has  been  discussed 
are  the  following  authorities :  Smith  v.  Kelly's  Heirs,  23  Miss.  170, 
55  Am.  Dec.  87;  Scott  v.  Key,  11  La.  Ann.  232;  Ross  v.  Ross,  129 
Mass.  243,  37  Am.  Rep.  321;  In  re  Goodman's  Trust,  Law  Reports, 
17  Chancery  Div.  266;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  40 
Am.  Rep.  505. 

The  decision  of  this  court  might  well  rest  upon  the  principle  as- 
serted in  the  authorities  already  cited  without  regard  to  the  cases 
which  are  claimed  to  hold  a  contrary  rule.  It  is  enough  to  say  that  the 
right  of  inheritance  under  circumstances  like  these  here  presented 
rests  upon  a  principle  which  is  founded  upon  a  rule  of  ancient  origin, 
reasonable  in  itself  and  in  accordance  with  the  well  being  of  society 
and  a  due  regard  to  the  right  of  persons,  and  that  it  is  fully  sustained 
by  the  weight  of  authority.  The  celebrated  case  of  Birtwhistle  v.  Var- 
dill,  reported  in  11  Eng.  C.  L.  266,  also  in  2  Clark  &  Fin.  581,  7 
Clark  &  Fin.  895,  and  9  Bligh,  7,  involved  a  question  of  similar  char- 
acter to  that  presented  in  the  case  at  bar,  and  is  specially  relied  upon 
by  the  respondent's  counsel.  It  was  there  held  that  a  child  born  in 
Scotland,  of  unmarried  parents  domiciled  in  that  country,  and  who 
afterward  intermarried  there,  is  not  by  such  marriage  rendered  capa- 
ble of  inheriting  lands  in  England.  By  the  Scottish  law  the  marriage 
legitimated  the  child.  It  was  laid  down  by  the  chief  baron  on  behalf 
of  the  court  that  the  comity  existing  between  nations  is  conclusive  to 
give  the  claimant  the  character  of  the  eldest  legitimate  son  of  his 
father  and  to  give  him  all  the  rights  which  are  necessarily  consequent 
upon  that  character.  Thus  sustaining  the  general  doctrine  that  by 
the  comity  between  different  nations  the  laws  of  one  should  be  recog- 
nized by  the  other  in  reference  to  rendering  children  of  parents  born 
out  of  wedlock  legitimate,  but  it  further  held  that  the  son  could  not 
inherit  in  England,  for  the  reason  that  although  he  was  legitimate  he 
was  not  born  in  wedlock.  The  distinction  between  being  legitimate 
and  being  born  in  wedlock  would  seem  to  be  a  narrow  one,  and  it  is 
difficult  to  see  how  it  can  be  urged  that  a  person  can  be  made  legitimate 
although  born  a  bastard,  and  yet  for  the  purpose  of  inheriting  real 
estate  be  illegitimate  because  not  born  in  wedlock.  The  particular 
phraseology  of  the  statute  of  Merton,  so  called,  had  much  to  do  with 
this  limited  and  narrow  construction,  and  it  is  but  fair  to  assume  that 
if  the  term  "born  in  wedlock"  had  been  excluded  the  right  of  inherit- 
ance would  have  been  maintained.  It  was  said  in  that  case  by  Bayley, 
J.,  that  "the  right  to  inherit  land  depends  upon  the  quality  of  the  land 
and  not  upon  any  personal  statutes."     It  would  thus  seem  that  the 


582  PARTICULAR  SUBJECTS.  (Part  2 

case  was  decided  upon  the  peculiar  laws  governing  real  estate  in 
England  and  especially  upon  the  statute  of  Merton.  It  was  twice 
argued  in  the  House  of  Lords  (2  Clark  &  Fin.  581;  7  Clark  &  Fin. 
895),  and  eventually  decided  upon  the  sole  ground  that  although  a 
child  born  in  Scotland  before  the  marriage  of  his  parents  would  be- 
come legitimate  by  the  subsequent  marriage  of  said  parents,  yet  he 
could  not  inherit  in  England,  for  the  reason  that  the  English  statute 
does  not  only  require  that  the  child  be  legitimate,  but  that  he  must 
also  be  born  in  wedlock.  This  distinction  was  strongly  criticised  by 
Lord  Brougham,  one  of  the  ablest  of  English  jurists,  and  one  of  the 
judges  in  that  case  when  last  heard.  He  says:  "If  what  is  laid  down 
in  this  case  be  law  the  bounds  of  that  law  are  very  narrow;  if  it  is 
the  law  anywhere  it  prevails  assuredly  only  as  the  law  within  the 
bounds  of  Westminister  Hall.  I  know,  wherever  I  go  in  Europe,  it 
is  boldly  denied  to  be  the  law.  I  know  the  opinion  of  Dr.  Story  and 
other  American  jurists  is  against  us,  and  I  do  not  think  I  could  over- 
state the  degree  in  which  all  these  jurists  dissent  from  the  judgment 
in  this  case."  See  7  Clark  &  Fin.  915.  Wharton  in  his  Conflict  of 
Laws  (section  241),  says  in  regard  to  this  case,  "the  opinion  was  based 
on  the  special  ground  that  the  English  law  as  to  the  descent  of  honors 
and  real  property  was  of  a  positive  and  distinctive  character,  and  could 
not  be  invaded  by  the  prescription  of  a  foreign  jurisprudence."  Par- 
sons in  his  work  on  Contracts  in  commenting  on  this  case  says :  "We 
think  such  a  marriage  in  Scotland,  supposing  parents  and  child  after- 
ward come  to  America  and  be  naturalized  here,  would  be  held  here 
to  make  the  child  an  heir  as  well  as  give  him  all  other  rights  of  legiti- 
macy." 

The  case  of  Smith  v.  Derr's  Adm'rs,  34  Pa.  126,  75  Am.  Dec.  641, 
arose  under  a  statute  of  Pennsylvania  similar  to  the  statute  of  Merton, 
and  was  disposed  of  in  a  very  brief  opinion  upon  the  authority  of  the 
case  of  Birtwhistle  v.  Vardill,  supra. 

The  case  of  Lingen  v.  Lingen,  45  Ala.  410,  is  contrary  to  the  gen- 
eral current  of  authority,  and  should  not,  we  think,  be  followed. 

When  the  state  of  Pennsylvania,  by  its  Legislature,  declared  that 
"in  any  and  every  case  when  the  father  and  mother  of  an  illegitimate 
child  or  children  shall  enter  into  the  bonds  of  holy  wedlock  and  co- 
habit, such  child  or  children  shall  thereby  become  legitimate  and  en- 
joy all  the  rights  and  privileges  as  if  they  had  been  born  during  the 
wedlock  of  their  parents,"  it  did  not  mean  that  persons  who  were 
born  illegitimate  would  only  be  legitimate  if  born  in  lawful  wedlock. 
Its  intention  was  to  legitimatize  the  offspring  of  those  who  were  un- 
married at  the  time  of  the  birth  of  their  child,  and  any  other  construc- 
tion would  lead  to  the  making  of  provision  for  children  lawfully  born 
instead  of  those  who  were  illegitimate.  To  hold  a  different  rule  would 
nullify  the  law  and  be  contrary  to  the  interpretation  usually  given  to 
remedial  statutes  of  the  character  of  the  one  considered. 

We  do  not  deem  it  necessary  to  consider  the  question  as  to  the 


Cll.    3)  FAMILY  LAW.  583 

definition  of  the  word  "legitimate."  Whether  it  embraces  "born  out 
of  wedlock"  is  in  our  opinion  not  material,  as  under  the  authorities 
we  have  cited  a  child  thus  born  may  be  made  legitimate  by  law,  and 
its  legitimacy  recognized  in  other  countries  besides  the  domicile  of 
its  parents,  by  the  comity  of  nations.  We  think  we  have  fully  estab- 
lished this  proposition,  and,  although  there  are  some  authorities  which 
hold  differently,  they  are  not  sufficient  to  overturn  the  doctrine  laid 
down  in  the  elementary  books  and  reported  cases. 

The  case  of  Birtwhistle  v.  Vardill  is  so  limited  and  restricted  that  it 
must  be  held  only  to  apply  to  the  law  as  established  in  Great  Britain. 
We  have  examined  the  other  authorities  not  specially  referred  to, 
which  have  been  cited  by  the  respondents'  counsel,  and  we  think  none 
of  them  are  in  conflict  with  the  rule  we  have  laid  down. 

In  our  opinion  the  judgment  of  the  General  Term  was  erroneous, 
and  should  be  reversed,  and  a  new  trial  granted,  with  costs  to  abide 
the  event.    All  concur. 

Judgment  reversed.  

OLMSTED  v.  OLMSTED.  * 

(Court  of  Appeals  of  New  York,  190S.     190  N.  Y.  458,  S3  N.  E.  5G0.) 

Haight,  J.  This  action  was  brought  to  obtain  a  partition  or  sale 
of  real  estate  claimed  by  the  appellants  as  tenants  in  common,  and  for 
a  determination  of  the  rights  of  the  parties  to  share  in  the  proceeds 
of  any  sale  that  should  be  made  thereof. 

It  appears,  in  substance,  from  the  findings  made  by  the  trial  court, 
that  the  real  estate  in  question  was  formerly  owned  by  one  Silas  Olm- 
sted, late  of  Tarrytown,  N.  Y.,  who  died  in  1874,  leaving  a  last  will 
and  testament  with  codicils  attached  which  were  admitted  to  probate, 
by  which  he  devised  the  use  of  the  property  to  his  sons,  William  F. 
and  Benjamin  Franklin,  during  their  natural  lives,  and  upon  their 
death  the  remainder  was  to  vest  in  the  "lawful  issue  of  each  of  my 
said  sons,  such  issue  to  take  share  and  share  alike;  the  children  of 
any  deceased  child  of  either  of  my  said  sons  to  take  the  share  their 
parent  would  have  taken  if  living."  Benjamin  F.  Olmsted,  one  of  the 
sons  of  the  decedent  to  whom  a  life  interest  in  the  real  estate  in  ques- 
tion had  been  given  by  the  testator,  was  married  to  Mary  J.  Olmsted 
in  the  state  of  New  York  on  the  2oth  day  of  December,  1850,  by  whom 
he  had  four  children,  to  wit,  the  plaintiff,  Daniel  H.  Olmsted,  and  the 
defendants  Mary  O.  Decker,  Clarence  E.  Olmsted,  and  Frank  S.  Olm- 
sted. Benjamin  F.  and  his  wife,  Mary,  were  residents  of  the  state 
of  New  York  at  the  time  of  their  marriage,  and  at  the  time  their  chil- 
dren were  bom,  and  Mary  continued  to  be  a  resident  of  this  state  until 
her  death,  on  the  23d  day  of  January,  1902.  It  further  appears  from 
the  finding  that  on  the  28th  day  of  February,  1874,  Benjamin  F.  Olm- 

*Affirmecl  by  the  Supreme  Court  of  the  United  States  in  216  U.  S.  3S0, 
30  Sup.  Ct.  292,  54  L.  Ed.  530,  25  L.  R.  A.  (N.  S.)  1292  (1910). 


584  PARTICULAR  SUBJECTS.  (Part  2 

sted  joined  in  a  marriage  ceremony  with  one  Sarah  Louise  Welch- 
man  in  the  state  of  New  Jersey,  by  whom  he  had  two  children,  who 
were  the  defendants  John  E.  Olmsted  and  William  H.  Olmsted,  and 
that  thereafter,  during  the  summer  of  1880,  they  removed  to  the  state 
of  Michigan,  and  on  the  10th  day  of  February,  1883,  in  the  circuit 
court  of  Wayne  county,  Mich.,  on  the  application  of  Benjamin  F. 
Olmsted,  reciting  that  he  then  was  and  had  been  for  more  than  a 
year  a  resident  of  the  state  of  Michigan,  procured  a  subpoena  to  be 
issued,  directing  Mary  Jane  Olmsted,  his  former  wife,  to  appear  and 
defend  an  action  brought  by  him  for  divorce  under  the  law  of  the 
state  of  Michigan,  on  account  of  extreme  cruelty  and  desertion ;  that 
the  subpoena  was  never  personally  served  upon  Mary  J.  Olmsted,  and 
on  proof  that  she  was  not  a  resident  of  the  state  of  Michigan,  but  was 
a  resident  of  the  state  of  New  York,  service  thereof  was  ordered  to 
be  made  by  publication  in  a  Detroit  paper.  After  the  period  of  pub- 
lication prescribed  by  the  order  had  expired,  the  said  Mary  Jane  Olm- 
sted not  having  appeared  or  answered,  judgment  was  entered  in  favor 
of  said  Benjamin  F.  Olmsted  for  a  dissolution  of  the  marriage,  and 
thereafter,  on  the  22d  day  of  August,  1882,  in  the  city  of  Detroit, 
Mich.,  Benjamin  F.  Olmsted  again  joined  in  a  marriage  ceremony 
with  the  said  Sarah  Louise  Welchman,  and  lived  with  her  until  the 
time  of  her  death,  January  30,  1900 ;  that  in  June,  1883,  Mary  Jane 
Olmsted  commenced  an  action  in  the  Supreme  Court  in  the  state  of 
New  York  against  Benjamin  F.  Olmsted  and  others,  setting  forth 
in  her  complaint  that  in  June,  1870,  Benjamin  F.  Olmsted  deserted 
and  abandoned  her  and  her  children  at  Newburgh,  N.  Y.,  and  took 
up  his  abode  in  New  Jersey,  and  demanded  a  decree  of  separation 
against  him  and  asking  for  alimony  and  counsel  fee,  and  the  applica- 
tion of  the  property  of  the  said  Benjamin  F.  Olmsted  for  the  purpose 
of  furnishing  the  money  required  therefor;  that  in  that  action  the 
judgment  roll  shows  that  Benjamin  F.  Olmsted  was  represented  by 
an  attorney  on  a  motion  for  the  sequestration  of  his  property  to  pay 
the  alimony,  etc.,  decreed  in  the  judgment;  and  that  on  the  22d  day 
of  January,  1885,  judgment  was  entered  in  that  action  for  the  plain- 
tiff Mary  Jane  Olmsted  and  against  the  defendant  Benjamin  F.  Olm- 
sted, separating  Mary  Jane  from  him  and  requiring  the  payment  by 
him  of  alimony  and  counsel  fees;  that  thereafter  an  appeal  was  taken 
from  the  judgment  so  entered  to  the  General  Term  of  the  Supreme 
Court,  in  which  the  judgment  was  afBrmed.  Benjamin  F.  Olmsted 
died  July  16,  1905,  and  thereupon  his  lawful  issue  became  entitled 
to  the  real  estate  as  remaindermen.  The  trial  court  found  as  conclu- 
sions of  law  that  the  lawful  issue  of  Benjamin  F.  Olmsted  were  the 
plaintifif,  Daniel  H.  Olmsted,  and  the  defendants  Mary  O.  Decker, 
Clarence  E.  Olmsted,  and  Frank  S.  Olmsted;  that  the  defendants 
John  H,  Olmsted  and  William  H.  Olmsted,  the  children  of  Benjamin 
F.  Olmsted  and  Sarah  Louise  Welchman,  were  not  the  lawful  issue 
of  Benjamin  F.  Olmsted,  and  were  not  entitled  to  any  share  in  the 


Ch.    3)  FAMILY  LAW.  585 

said  property.  The  Appellate  Division  has  modified  the  judgment, 
holding  that  the  defendants  John  H.  Olmsted  and  William  H.  Olm- 
sted are  the  lawful  issue  of  Benjamin  F.  Olmsted,  and  are  entitled  to 
share  in  the  said  property. 

Under  the  common  law  the  legitimacy  or  illegitimacy  of  a  person 
was  determined  by  the  law  of  the  country  in  which  he  was  born.  If 
by  the  law  of  that  country  he  was  legitimate,  he  should  be  deemed 
legitimate  everywhere.  If,  however,  by  that  law  he  was  illegitimate, 
then  he  should  be  deemed  illegitimate  in  every  other  country.  There 
were  some  exceptions;  for  instance,  if  the  parents  were  citizens  or 
representatives  of  som.e  foreign  country,  passing  through  or  tempo- 
rarily staying  in  the  country  of  the  birth.  But  these  exceptions  do 
not  arise  in  the  case  under  consideration,  and  are  not  necessary  to 
be  now  considered.  In  some  of  the  countries  of  Europe  there  were 
laws  under  which  illegitimate  children  became  legitimate  by  the  sub- 
sequent marriage  of  their  parents.  This  was  the  case  in  France,  and 
its  courts  consequently  held  that  a  child  born  out  of  wedlock  in  its 
country  became  legitimate  by  a  subsequent  marriage  of  its  parents, 
although  the  marriage  took  place  in  England,  where  a  different  law 
prevailed,  and  where  a  subsequent  marriage  would  not  have  the  effect 
of  rendering  the  child  legitimate.  See  Story  on  Conflict  of  Laws 
(Redfield  Ed.)  §§  93,  93s,  and  other  authorities  cited.  In  this  state 
the  law  is  now  settled  in  accordance  with  the  French  rule,  that,  when 
an  illegitimate  child  has  by  the  subsequent  marriage  of  his  parents 
become  legitimate  by  virtue  of  the  laws  of  the  state  or  country  where 
such  marriage  took  place  •  and  the  parents  were  domiciled,  he  is 
thereafter  legitimate  everywhere,  and  is  entitled  to  all  of  the  rights 
flowing  from  that  status,  including  the  right  to  inherit,  notwithstand- 
ing the  fact  that  he  was  born  in  another  country.  Miller  v.  Miller, 
91  N.  Y.  315,  43  Am.  Rep.  669.  Recently  many  of  our  sister  states 
have  adopted  statutes  similar  to  those  of  France,  providing  that  the 
subsequent  marriage  of  the  parents  legtimatized  the  child  or  children 
previously  bom.  Such  a  statute  was  adopted  in  Michigan  in  1881 
(Laws  1881,  p.  48,  No.  55),  and  in  this  state  in  1895  (Laws  1895, 
p.  313,  c.  531).  These  statutes,  however,  were  passed  long  after  the 
death  of  Silas  Olmsted  and  the  admitting  of  his  will  to  probate,  under 
which  his  legitimate  grandchildren  became  vested  as  remaindermen 
in  the  estate  left  by  him,  subject  to  the  life  use  by  their  father.  But 
the  statutes  to  which  we  refer,  both  in  this  state  and  in  Michigan,  only 
relate  to  such  marriages  between  parents  as  may  be  lawfully  made,  and 
not  to  those  which  are  polygamous,  incestuous,  or  are  prohibited  by 
law.    See  Story  on  Conflict  of  Laws,  §§  113a,  114. 

In  the  case  of  Adams  v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13 
L.  R.  A.  275,  a  testator  in  Massachusetts  bequeathed  property  to  the 
wife  of  his  brother  "for  the  benefit  of  herself  and  all  the  children  of 
such  brother."  Thereafter  the  brother  went  to  California  and  obtained 
a  divorce  from  his  wife  without  living  there  the  requisite  time,  or  of 


586  PARTICULAR  SUBJECTS.  (Part  2 

giving  her  notice.  He  then  married  another  woman,  by  whom  he 
had  previously  had  an  illegitimate  son.  Under  the  Code  of  California, 
children  begotton  before  marriage  were  legitimatized  by  subsequent 
marriage  of  the  parents.  The  illegitimate  son,  claiming  to  be  legitima- 
tized by  the  Code  of  California,  brought  an  action  in  equity  to  estab- 
lish his  share  in  the  fund  left  by  the  testator  for  the  benefit  of  the  wife 
and  all  the  children  of  the  testator's  brother.  The  action  was  dis- 
missed, the  court  holding  that  the  validity  of  the  divorce  might  be 
inquired  into,  notwithstanding  the  recitals  in  the  record;  that  the  mar- 
riage was  void  and  did  not  legitimatize  the  plaintiff,  and  consequently 
he  was  not  entitled  to  take  under  the  will.  That  case,  in  many  re- 
spects, is  similar  to  this  case.  As  we  have  seen,  Benjamin  F.  Olm- 
sted was  a  resident  of  this  state,  married  here,  and  had  four  children. 
He  then  left  his  family  and  went  to  New  Jersey,  where  he  lived  with 
another  woman,  by  whom  he  had  two  sons.  These  children  were  con- 
cededly  illegitimate.  He  then  removed  to  Michigan,  brought  an  ac- 
tion against  his  wife  for  divorce,  who  was  still  living  in  the  state  of 
New  York,  and  procured  a  decree  in  that  court  annulling  the  mar- 
riage upon  the  ground  that  his  wife  had  deserted  him,  without  per- 
sonal service  upon  her  of  process  or  other  notice  of  the  commence- 
ment of  the  action.  He  then  married  the  mother  of  his  two  illegitimate 
children. 

While  the  courts  of  this  state  are  required  to  give  full  faith  and 
credit  to  the  decrees  of  the  courts  of  our  sister  states,  we  have  the 
right  to  inquire  as  to  whether  such  courts  had  obtained  jurisdiction 
of  the  person  and  the  subject-matter ;  and,  if  we  find  that  they  had 
not  obtained  jurisdiction,  then  their  judgment  or  decrees  become  of 
no  force  or  effect.  Matter  of  Kimball,  155  N.  Y.  68,  49  N.  E.  331; 
Winston  v.  Winston,  165  N.  Y.  555,  59  N.  E.  273 ;  Haddock  v.  Had- 
dock, 201  U.  S.  562,  26  Sup.  Ct.  525,  50  L.  Ed.  867 ;  Atherton  v. 
Atherton,  155  N.  Y.  129,  49  N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St. 
Rep.  650;  Id.,  181  U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794.  The 
Michigan  courts  never  obtained  jurisdiction  of  Benjamin  F.  Olm- 
sted's wife,  a  resident  of  this  state.  She  had  no  notice,  and  conse- 
quently did  not  appear  in  the  action.  The  ground  upon  which  the  di- 
vorce was  sought  was  one  not  recognized  by  the  laws  of  this  state 
as  a  ground  for  divorce.  It  was  a  decree  such  as  the  courts  of  this 
state  have  repeatedly  refused  to  recognize  as  valid  and  binding.  Not 
only  have  our  courts  refused  to  recognize  such  decrees  as  valid,  but 
with  reference  to  this  particular  decree  an  action  had  been  brought  in 
this  state  by  Mrs.  Olmsted  for  separate  support  and  maintenance,  and 
for  the  sequestration  of  the  property  of  her  husband  for  that  purpose; 
and,  although  he  appeared  by  counsel,  the  court  has  adjudged  her  en- 
titled to  such  sequestration  and  support,  and  upon  the  ground  that 
he  had  deserted  her  and  her  family.  Thus  we  have  an  adjudication 
in  our  own  courts,  establishing  the  fact  that  Mrs.  Olmsted  was  still 
his  wife,  rotwithstanding  the  Michigan  decree.     It  is,  however,  urged 


Ch.  3) 


FAMILY  LAW. 


587 


that,  although  the  Michigan  decree  may  be  invalid  and  of  no  force  or 
effect,  still  the  illegitimate  children  became  legitimate  under  that  de- 
cree, and  therefore  our  courts  are  bound  to  recognize  them  as  legiti- 
mate. We  cannot  approve  of  the  soundness  of  such  a  contention.  As 
we  have  already  stated,  the  statute  was  designed  only  for  such  persons 
as  were  free  from  legal  obstacles  preventing  their  marriage,  and  it 
consequently  follows  that,  if  the  divorce  was  void,  then  legal  obstacles 
did  exist  to  the  marriage  of  these  persons;  for  Olmsted  had  another 
wife  living  from  whom  he  had  no  valid  divorce,  and  his  marriage  un- 
der such  circumstances  was  polygamous,  and,  had  the  ceremony  been 
performed  in  this  state,  it  would  have  been  bigamous  and  punishable 
criminally.  Should  we  sanction  the  doctrine  contended  for,  then  the 
Legislature  in  any  state  could,  in  effect,  nullify  our  own  statutes  and 
deprive  our  own  citizens  of  property,  which  under  our  laws  they  had 
become  lawfully  vested  with  and  entitled  to  receive.  Not  only  this, 
but  the  statute  of  Michigan,  passed  in  1881,  could  change  the  provi- 
sions of  a  will  executed  here  and  probated  in  1874,  bringing  in  per- 
sons as  remaindermen  who,  under  the  provisions  of  the  will,  were  not 
remaindermen,  nor  entitled  to  share  in  the  estate.  We  think  this 
should  not  be  permitted. 

The  judgment  of  the  Appellate  Division  should  be  reversed,  and 
that  of  the  trial  court  affirmed,  with  costs  in  both  courts. 


IMOEN  v.  MOEN. 

(Supreme  Court  of  South  Dakota,  1902.    16  S.  D.  210.  92  N.  W.  13.) 

The  plaintiff  herein  is  the  illegitimate  child  of  John  Johannessen 
3>Ioen,  otherwise  known  as  John  K.  Moen,  deceased.  She  was  born 
in  Norway,  Europe,  on  or  about  the  24th  day  of  September,  1874, 
where  she  resided  until  the  year  1893,  when  she  came  to  South  Da- 
kota, and  has  since  lived  in  said  state.  Britta  Iverson  was  plaintiff's 
mother,  and  was  also  born  and  at  all  times  lived  in  Norway,  where 
she  now  lives.  Moen  was  born  and  lived  in  Norway,  until  the  latter 
part  of  1874,  or  the  early  part  of  1875,  when  he  came  to  the  United 
States,  and  settled  in  the  territory  of  Dakota.  Before  leaving  Norway, 
but  while  a  resident  and  citizen  of  said  country,  and  after  the  birth 
of  plaintiff,  he  acknowledged  himself  to  be  the  father  of  the  plaintiff, 
in  writing  signed  and  executed  by  him  in  the  presence  of  a  competent 
witness.  Moen  died  in  Lincoln  county,  South  Dakota,  in  the  noonth 
of  May,  1877.  In  February,  1885,  the  government  of  the  United 
States  issued  a  grant  or  patent  for  a  certain  tract  of  land  in  Da|cota 
to  Moen's  heirs.  In  March,  1887,  Moen's  father  conveyed  these  prem- 
ises by  quitclaim  deed  to  his  son  John  J.  Moen.  There  was  no  law 
in  Norway,  at  the  time  of  the  birth  of  plaintiff,  nor  has  there  been 
since,  either  written  or  unwritten,  by  which  the  plaintiff  herein  could 


588  PARTICULAR  SUBJECTS.  (Part  3 

inherit,  under  or  by  virtue  of  the  instrument  executed  by  Moen,  nor 
did  he  at  any  time  pubHcly  acknowledge  the  plaintiff  as  his  child,  nor 
did  he  treat  her  as  if  she  were  legitimate,  nor  did  he  adopt  her  in  any 
manner  as  his  child. "^^ 

Haney,  p.  J.^^  *  *  *  'j^j^g  plaintiff  contends  that  upon  the  facts 
so  found  the  court  below  should  have  concluded  that  she  was  the  ab- 
solute owner  and  entitled  to  the  possession  of  the  premises  described 
in  the  complaint,  instead  of  deciding  that  defendant  was  the  owner 
and  entitled  to  the  possession.  The  land  in  controversy  was  conveyed 
by  the  United  States  to  "the  heirs  of  John  K.  Moen."  It  was  located 
in  the  then  territory  of  Dakota,  now  state  of  South  Dakota.  Who  are 
intended  as  grantees  in  such  a  conveyance  depends  upon  the  law  of 
the  state  or  territory  wherein  the  land  is  situated.  Investment  Co.  v. 
Caldwell,  152  U.  S.  65,  14  Sup.  Ct.  504,  38  L.  Ed.  356.  It  is  an  es- 
tablished principle,  everywhere  recognized,  arising  from  the  necessity 
of  the  case,  that  the  disposition  of  immovable  property  whether  by 
deed,  descent,  or  any  other  mode,  is  exclusively  subject  to  the  govern- 
ment within  whose  jurisdiction  the  property  is  situated.  United  States 
V.  Fox,  94  U.  S.  315,  24  L.  Ed.  192 ;  Comp.  Laws,  §  2733.  Our  Civil 
Code  contains  the  following  rules  relating  to  succession  or  "the  com- 
ing in  of  another  to  take  the  property  of  one  who  dies  without  dis- 
posing of  it  by  will" :  "If  the  decedent  leaves  no  surviving  husband 
or  wife,  but  leaves  issue,  the  whole  estate  goes  to  such  issue."  "Ev- 
ery illegitimate  child  is  an  heir  of  the  person,  who,  in  writing,  signed 
in  the  presence  of  a  competent  witness,  acknowledges  himself  to  be 
the  father  of  such  child."  Comp.  Laws,  §§  3399,  3401,  3403.  The 
Civil  Code  now  in  force  in  this  state  had  its  origin  in  the  report  of  a 
New  York  commission,  which  first  took  the  form  of  a  statute  in  an 
act  passed  at  the  fifth  session  of  the  legislative  assembly  of  Dakota 
territory,  approved  January  12,  1866.  The  same  report,  revised  and 
amended,  was  enacted  as  the  Civil  Code  of  California  in  1873.  In 
1875  a  commission  was  created  to  revise  and  codify  the  laws  of  Da- 
kota territory.  This  commission  revised  the  Civil  Code  then  in  force, 
incorporating  therein  many  of  the  amendments  made  by  the  legisla- 
ture of  California.  Its  labors  resulted  in  the  Revised  Codes  of  1877, 
which  took  effect  February  17,  1877.  The  provisions  relating  to 
succession,  heretofore  quoted,  are  found  in  the  California  Code,  but 
not  in  the  territorial  Code  previous  to  the  revision  of  1877.  Thus  it 
would  appear  that  the  law  relied  upon  by  the  plaintiff'  came  from 
California,  and  was  in  force  in  the  jurisdiction  wherein  the  land  in  con- 
troversy was  situated  when  her  father  died,  but  was  not  in  force  therein 
when  he,  in  writing,  in  the  presence  of  a  competent  witness,  acknowl- 
edged hirhself  to  be  her  father.  Though  the  facts  relating  to  such 
acknowledgment,  as  found  by  the  court  below,  comply  literally  with 

81  This  statement  of  facts  has  been  abstracted  from  the  opinion. 

82  A  part  of  the  opinion  has  been  omitted. 


Ch.    3)         ,  FAMILY  LAW-  589 

the  language  of  the  statute,  defendant  contends  that  the  plaintiff  did 
not  succeed  to  her  father's  estate,  because:  (1)  Such  acknowledg- 
ment was  executed  before  the  statute  took  effect;^  and  (2)  because  it 
was  executed  in  Norway,  where  there  was  and  is  no  law  by  which 
she  could  inherit  under  such  an  instrument.  The  statute  does  not, 
by  its  express  terms,  support  respondent's  contention.  It  relates  to 
the  subject  of  succession;  it  is  broad  and  comprehensive,  and  should 
be  "liberally  construed  with  a  view  to  effect  its  objects  and  to  promote 
justice."  Comp.  Laws,  §  4763.  Undoubtedly,  the  principal  object  of 
the  legislature  was  to  enable  an  illegitimate  child  to  inherit  its  father's 
estate,  and  incidentally  to  prescribe  the  character  of  evidence  required 
to  establish  its  paternity.  Recurring  to  the  language  of  the  statute, 
when  is  a  child  an  heir?  Manifestly,  upon  the  death  of  its  ancestor. 
An  heir,  as  the  term  is  here  used,  is  always  appointed  by  the  law.  Its 
title  is  called  into  existence  by  the  death  of  its  ancestor,  and  its  rights 
are  governed  by  the  law  in  force  at  the  time  of  such  death.  2  Washb. 
Real  Prop.  pp.  6-17.  No  one  can  take  real  property  except  those  who 
are  recognized  as  heirs  by  the  law  of  the  country  where  the  property 
is  situated.  Story,  Confl.  Laws,  §  483.  No  one  has  any  vested  rights 
in  his  ancestor's  property  until  the  latter's  death.  He  may  not  sur- 
vive the  ancestor.  The  ancestor  may  dispose  of  the  property  by  will, 
or  the  law  of  succession  may  be  changed  before  his  title  becomes 
vested.  The  acknowledgment  required  by  the  statute  cannot  be  ex- 
ecuted after  the  ancestor's  death.  Hence  the  thought  of  the  lawmaker 
would  have  been  more  accurately  expressed  in  these  words :  "Every 
illegitimate  child  shall  inherit  of  the  person  who,  at, the  time  of  his 
death,  shall  have  acknowledged  himself  to  be  the  father  of  such  child, 
in  writing,  signed  in  the  presence  of  a  competent  witness."  The  in- 
quiry demanded  by  the  statute  to  be  answered  at  the  time  of  the  prop- 
erty owner's  death  is  simply  this :  Has  the  paternity  of  the  person 
claiming  to  be  an  heir  been  acknowledged  by  the  deceased,  in  writing, 
signed  in  the  presence  of  a  competent  witness?  The  tiirie  and  place 
of  such  acknowledgnjeirt^are^  not  ^prescribed  by  tlTe__statut£^__It-4tta¥- 
have  been  made  at  any_place_and^^t  any  time  after  the  birth  of  the 
claimant  and^  before  the  death  of  the  ancestoxl  The  effect  of  the  ac- 
knowledgment is  to  clothe  the  child  with  thfe  same  rights  as  to  real 
property  as  are  possessed  by  one  born  in  lawful  wedlock.  This  is 
clearly  what  the  legislature  intended,  and  it  was  within  the  legislative 
power  to  make  such  rules  regarding  succession  to  real  property  within 
its  jurisdiction  as  it  deemed  expedient.  There  is,  therefore,  no  merit 
m  the  contention  that  the  acknowledgment  in  this  case  is  ineffectual 
because  it  was  executed  before  the  statute  took  effect.  A  different 
conclusion  was  reached  by  the  United  States  Circuit  Court  in  Iowa. 
Hartinger  v.  Ferring  (C.  C.)  24  Fed.  15.  We  prefer,  however,  to 
follow  the  opinion  of  the  Supreme  Court  of  that  state  on  this  subject. 
In  a  recent  case  involving  the  right  of  an  illegitimate  child  to  inherit 
property  in  Iowa  that  court,  speaking  by  Justice  McClain,  uses  this 


590  PARTICULAR  SUBJECTS.  (Part  2 

language :  "Appellees  insist  that  evidence  of  recognition  must  be 
strictly  limited  to  acts  and  conversations  subsequent  to  the  time  when 
such  recognition  would  by  law  entitle  the  plaintiff,  if  an  illegitimate 
son,  to  inherit.  For  this  contention  they  cite  the  case  of  Hartinger 
V.  Ferring  (C.  C.)  24  Fed.  15,  in  which  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  Iowa  reached  the  conclusion  con- 
tended for;  but  we  think  this  position  is  untenable.  The  Legislature, 
having  the  right  to  determine  the  rules  of  inheritance  in  accordance 
with  which  the  property  of  persons  subsequently  dying  shall  be  dis- 
tributed, may  provide  as  it  sees  fit  with  reference  to  who  shall  be  heirs. 
There  is  no  vested  right  to  inherit  until  the  death  of  the  ancestor.  It 
may,  therefore,  be  provided  that  illegitimate  children  already  born  and 
recognized  shall  be  considered  heirs.  The  recognition  contemplated 
by  the  statute  is  not  recognition  as  prospective  heir,  but  recognition 
as  an  illegitimate  child;  and  whoever  fulfills  the  conditions  of  the 
statute  as  to  the  right  to  inherit  existing  at  the  time  of  the  death  of 
the  ancestor  is  entitled  to  inherit  under  the  statute.  There  is  nothing 
in  the  language  indicating  that  it  was  to  be  applicable  to  such  recogni- 
tion as  should  afterwards  be  made.  It  describes  a  class  of  persons, 
and  declares  that  persons  of  that  description  shall  inherit.  It  does 
not  refer  to  or  create  a  status.  It  is  prospective  in  its  operation  as 
to  the  right,  but  there  is  nothing  to  suggest  that  persons  of  the  class 
described — that  is,  illegitimates  already  recognized — shall  not  inherit 
under  it.  It  would  he  jn^  as  reasonable  tojiniil_-th€-pfovtskm^i_.of_. 
the  statute  to  illegitimates  after\vards  begotfen  anrLborn  as  to  so  limit 
it  to  illegiiEimatesa7te^rwards"l"ecogmzed^_aiid  j^  would^e  just  as.  rea- 
sonable  in  the_pne„case_as_in  the_other_tQ  argue  that  to  adop^_a_con- 
struction  making  it  applicabjeja-fisisting  illegitimate  children  would 
be  to  give  tlie  5tgTUtg"ar£j-T"spective  effect."  ^!^TsFori~vr"Als!on.  114 
Iowa,  29,  86  N.  W.  55.  If  the  acts  constituting  the  acknowledgment 
are  in  themselves  such  as  the  statute  prescribes,  they  confer  the  right 
to  inherit  in  the  state  where  the  real  property  is  situated,  without 
reference  to  the  intent  with  which  they  were  performed.  In  re  Roh- 
rer's  Estate,  22  Wash.  151,  60  Pac.  122,  50  L.  R.  A.  350 ;  Blythe  v. 
Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40;  Brock  v.  State,  85 
Ind.  397 ;  Crane  v.  Crane,  31  Iowa,  296.  It  is,  therefore,  wholly 
immaterial  what  law  existed  in  Norway  relating  to  the  recognition  of 
illegitimate  children  when  the  writing  in  this  case  was  signed  by  the 
plaintiff's  father.  It  may  be  conceded  that  he  neither  knew  nor  in- 
tended that  its  execution  would  confer  upon  the  child  the  right  to 
inherit  his  property  in  any  jurisdiction.  Nevertheless,  it  had  the  ef- 
fect of  furnishing  the  proof  required  by  the  laws  of  this  jurisdiction 
to  establish  the  fact  that  he  was  the  father  of  the  child,  and  such  fact 
being  thus  established  makes  her  an  heir  of  her  deceased  father,  and 
entitled  to  the  land  in  controversy.  We  do  not  apprehend  that  the 
decision  in  Eddie  v.  Eddie,  8  N.  D.  376,  79  N.  W.  856,  73  Am.  St. 
Rep.  765,  conflicts  with  this  conclusion.    In  that  case  the  father  never 


Ch.    3)  FAMILY  LAW.  591 

acknowledged  the  children  to  be  his  own  by  any  written  Instrument. 
The  court  was  deahng  with  the  statute  of  North  Dakota  relating  to 
the  adoption  of  children,  and  may  have  been  right  in  concluding  that 
the  status  of  the  persons  claiming  to  have  been  adopted  by  acts  per- 
formed in  Norway  could  not  be  determined  by  the  law  of  North  Da- 
kota. Here  we  are  dealing  simply  with  a  rule  of  succession  as  it  was 
in  force  and  affected  title  to  real  property  in  Dakota  territory  at  the 
time  of  the  owner's  death.  If,  however,  our  views  do  conflict  with  the 
decision  in  North  Dakota,  we  cannot,  with  all  due  respect  to  the  able 
court  of  that  state,  arrive  at  any  other  conclusions  than  those  an- 
nounced herein.  Upon  the  facts  as  found  by  the  learned  circuit  court, 
we  think  the  plaintiff  should  have  been  adjudged  to  be  the  owner  in 
fee  and  entitled  to  the  possession  of  the  premises  in  controversy. 

Not  having  appealed,  the  defendant  is  in  no  position  to  question 
the  correctness  of  the  findings  of  fact.  The  judgment  of  the  circuit 
court  is  reversed,  and  the  case  remanded,  with  directions  to  enter  a 
judgment  decreeing  the  plaintiff  to  be  the  owner  in  fee  of  the  premises 
described  in  the  complaint,  and  entitled  to  the  possession  thereof,  and 
for  her  costs  and  disbursements.^^ 

ssAccord:   Hall  v.  Gabbert,  21.3  111.  208.  72  N.  E.  SOR  (1904). 

Similar  principles  govern  adoption.  See  Ross  v.  Ross.  129  Mass.  243.  87 
Am.  Rep.  321  (ISSO) ;  Van  Matre  v.  Sankey,  14S  111.  536,  36  N.  E.  628,  23  L.  R. 
A.  665.  39  Am.  St.  Rep.  196  (1893);  and,  in  general,  39  Am.  St.  Rep.  229-231; 
65  L.  R.  A.  186-187. 

Continental  Law. — The  national  law  of  the  parties  governs  the  question 
of  legitimation  and  adoption.  Italy. — Article  6,  Prel.  Disp.  Civ.  Code.  France. 
— Legitimation  by  the  intermarriage  of  the  parents  depends  upon  the  national 
law  of  the  father  at  the  time  of  the  marriage.  App.  Caen,  Nov.  IS, '1852 
(S.  1852,  2,  432).  On  the  ground  of  public  policy,  however,  a  child  will  be 
legitimated,  irrespective  of  the  national  law  of  its  parents,  as  a  result  of  the 
intermarriage  of  its  parents  in  France.  Cass.  Nov.  23,  18.57  (S.  1S58,  1,  293). 
Germany — The  national  law  of  the  father  at  the  time  of  the  legitimation  or 
adoption  applies.  K.  G.  May  28,  1901  (13  Niemeyer,  417).  If  the  parent  or 
adopter  belongs  to  a  foreign  country,  the  child  being  a  German  subject,  the 
assent  of  the  child  or  its  guardian  is  necessary  to  the  validity  of  the  legitima- 
tion or  adoption.    Article  22,  Law  Intr.  Civ.  Code. 

See,  also,  F.  Despagnet,  De  la  legitimation  en  droit  international  priv6,  15 
Clunet,  592-602;  L.  Duguit,  Du  conflit  des  lois  en  mati&re  de  filiation,  12 
Clunet,  353-374;  13  Clunet,  513-526;  J.  Keidel,  Le  droit  international  prive 
dans  le  uouveau  Code  Civil  Allemand,  26  Clunet,  249-2.54 ;  Carl  Ritter.  Ehe- 
lichkeitserkliirung  und  Adoption  im  deutschen  internationalen  Privatrecht,  14 
Niemeyer,  4.35-470;  E.  Stocqart,  De  la  legitimation  des  enfants  naturels  par 
mariage  subsequent  en  droit  international  prive,  envisagee  specialement  au 
point  de  vue  du  droit  anglais,  15  Clunet,  205-212. 

The  relationship  between  parent  and  child  is  governed  by  the  national 
law  of  the  parent,  subject  to  the  rules  concerning  public  order.  So  as  to 
legitimacy.  Germany,  article  18.  Law  Intr.  Civ.  Code ;  K.  G.  Feb.  2,  1901 
(11  Niemeyer,  95).  See,  also,  section  328,  Code  Civ.  Proc.  Italy,  Genoa,  Dec. 
14,  1S91  (Monitore  1892,  p.  171).  So  as  to  proof  of  legitimacy.  France,  App. 
Rouen,  July  25,  1906  (4  Darras,  247).  So  as  to  recognition  of  natural  chil- 
dren and  its  effect.  France.  Cass.  Jan.  17.  1899  (S.  1899,  1,  177),  and  note  by 
A.  Pillet.  So  as  to  relationship  of  an  illegitimate  child  to  its  mother.  Ger- 
many, article  20,  Law  Intr.  Civ.  Code.  German  law,  however,  will  be  applied 
if  the  mother  has  lost,  but  the  child  has  retained,  the  German  nationality. 
Article  20,  Law  Intr.  Civ.  Code. 


592 


PARTICULAR  SUBJECTS. 


(Part  2 


SECTION  4.— MATRIMONIAL  PROPERTY. 


HARRALL  v.  WALLIS. 

(Court  of  Chancery  of  New  Jersey,  1883.    37  N.  J.  Eq.  458.) 


Suit  by  Mrs.  Claire  Harrall,  of  Paris,  against  the  executors,  next 
of  kin,  and  legatees  of  her  late  husband,  Dr.  Frederick  F.  Harrall, 
for  the  recovery  of  one-half  of  all  his  personal  property.  Harrall 
made  a  will  in  1869,  in  New  York,  where  he  was  then  domiciled.  He 
thereupon  established  his  domicile  in  France,  and  was  married  there 
in  1877  to  complainant,  a  French  subject.  Harrall  died  in  a  lunatic 
asylum  in  Pennsylvania  in  1881.^* 
'  ^«/0  RuNYON,  Ch.^"  [After  stating  the  facts  and  finding  that  at  the  time 
(i>^  of  his  marriage  and  at  the  time  of  his  death  Harrall  was  domiciled 
in  France,  the  learned  Chancellor  continued  as  follows:] 

By  the  law  of  France,  where  there  is  no  contract  between  them  on 
the  subject,  the  parties  to  a  marriage  are,  by  what  is  called  "le  regime 
de  la  communaute,"  entitled  in  common  (each  to  one-half),  by  a  kind 
of  partnership,  to  the  personal  property  which  belonged  to  either  of 
them  at  the  time  of  the  marriage,  or  which  they  acquired  afterwards 
by  title  of  succession  or  by  gift   (unless  otherwise  provided  by  the 
.     donor)  and  the  produce  thereof,  and  all  the  real  estate  acquir^i».by 
<^  either  during  the  continuance  of  the  marriage  relation,  Qxcept  such  as 
uired  by  inheritance  or  mit.     Code  Civil,  §  1401.     If  the  hus- 
as  in  the  case  in  hand,  made  a_will  before  marriage^  disposing 
others,  it  will  only,  as  to  tjlf  ^nmrngn  properjXil^be 
his  share.     "As  a  general  rule,"   says   Mr.   Parsons, 
the  rights  of  the  parties  as  springing  from  the  relation  of  marriage, 
where  there  is  no  special  nuptial  contract,  must  be  determined  by  the 
place  where  they  then  supposed  themselves  and  intended  to  be  domi- 
ciled."    2  Pars,  on  Cont.  111.     "It  is  universally  allowed,"  says  Mr. 
Westlake,  "that  when  a  marriage  takes  place  without  settlement,  the 
mutual  rights  of  the  husband  and  wife  in  each  other's  movable  prop- 
erty, whether  owned  at  the  time  of  the  marriage  or  afterwards  ac- 
quired, are  to  be  regulated  by  the  law  of  the  matimonial  domicile, 
so  long  as  that  remains  unchanged."     Westlake,  Priv,  Int.  Law,  352. 
Judge  Story  states  it  as  a  proposition,  which,  though  not  universally 
established  or  recognized  in  America,  has  much  of  domestic  authori- 
ty for  its  support  and  none  in  opposition  to  it,  that  "where  there  is  no 
express  contract  the  law  of  the  matrimonial  domicile  will  govern  as 
to  all  the  rights  of  the  parties  to  their  present  property  in  that  place. 


f\fi^     'v,\     WTband/as  in  the  c 

.    J^         \yi!\   of  his  estate  to 
r^O^^      \j       |i  .operative  as  to  1 


84  This  brief  statement  of  facts  has  been  taken  from  the  opinion. 
86 A  part  of  the  opinion  has  been  omitted. 


Ch.    3)  FAMILY  LAW.  593 

and  as  to  all  personal  property  everywhere,  upon  the  principle  that 
movables  have  no  situs,  or  rather  that  they  accompany  the  person 
everywhere,  and  that  as  to  immovables  the  law  rei  sitae  will  prevail." 
Story's  Confl.  L.  §  186,  That  domicile,  where  there  is  no  intention  to 
remove  to  another  state,  is  that  of  the  husband  at  the  time  of  the 
marriage.  It  is  urged^  in  thjscase.  however,  that  Dr.  Harrall  could 
not  have_  obtamed  _a_dQniicileJini^ra^i^^  the  timeof_his  marriage, 
because,  it  is  alleged,  the  French  Code  rlprjprpg  fliat  ^  fnreip-npr,  to 
obtain  a-"^nicile  in  thaF  country,  must  apply  to  the  ^government  for 
permission  to  do~so,  and~  obtain  express  aljthoritY  from  it  to  establish 
such  domicil,  and  that  Dr.  Harrall  made  no  such  application.  The  pro- 
vision in  question  is  "L'etranger  qui  aura  ete  admis  par  le  gouvern- 
ment  a  etablir  son  domicile  en  France  y  jouira  de  tous  les  droits  civils 
tant  qu'il  continuera  d'y  resider."  Code,  art.  1,  c.  1,  §  13.  But  _the 
object  of  that  provision  is  to  establish  the  mode  in  which  a  foreigner 
can  become  entitled  to  en]ov  tnf  ri\rll"r1wht5  ot  a  Krenchman.  and  Tt 
does  not  affect  the  consideration  of  the  question  now  before  me.  Al- 
though Dr.  Harrall  had  not  been  admitted  to  the  civil  rights  of  a 
Frenchman,  or,  in  other  words  had  not,  to  use  our  form  of  speech  on 
the  subject,  become  naturalized  m  France,  that  fact  did  not  prevent 
him  from  obtaining  a  domicile,  in  fact,  there.  And  thg  rights  of  the 
complainant  are  to  be  determined,  not  by  the  decision  of  the  question" 
whether  Ker  husband  assumeTt"a:lleulaili;e  LU  Llie  HUV^iHHl^tit  6f  France," 


but  by  the  decision  of  the  question  whether,  wnen  the  marriage  took_ 
place,  he  was_domiri1ed,  iri_iact,  in  that  country.  See  Dicey  on  Domi- 
cile,  362.  Several  cases  are  cited  in  which  the  French  courts  have  held 
that,  in  the  absence  of  any  express  nuptial  contract,  the  husband's  mere 
domicile,  in  fact,  determined  the  widow's  rights  in  his  personal  es- 
tate. It  is  urged  that  there  are  decisions  of  those  courts  to  the  con- 
trary also. 

But  it  is  a  question  not  depending  for  its  determination  merefy  on 
the  decision  of  the  French  courts.  It  is  a  question  of  international 
law  upon  which  the  adjudications  of  those  courts  are  indeed  of  very 
high  importance,  but  it  is  to  be  decided  in  this  case  here  according  to 
what  may  seem  to  be  just  views  and  principles.  I  conclude  from  the 
evidence  that  Dr.  Harrall,  at  the  time  of  his  marriage,  was  in  fact 
domiciled  in  France;  that  he  intended  to  reside  there  permanently, 
and  did  not  intend  to  return  to  America  to  reside,  and  that  after  that 
time  he  never  changed  his  domicile.  It  follows  that  as  the  law  of 
France  would  give  the  complainant  one-half  of  the  personal  estate 
of  her  husband  notwithstanding  the  will,  this  court  shall  therefore 
award  it  to  her.  Had  Dr.  Harrall  been  domiciled  here,  and  died  in- 
testate, our  law  would  have  given  to  her  one-half  of  his  personal  es- 
tate, for  he  had  no  children,  and  in  this  connection  it  will  not  be  amiss 
to  state,  although  the  fact  will  not  affect  the  decision,  that  in  Novem- 
ber, 1877,  his  attorney  and  agent  in  New  York,  who  also  was  his  friend 
and  confidential  adviser,  wrote  to  him  in  regard  to  the  condition  of 
LoR.CoNF.L.— 38 


)94 


PARTICULAR  SUBJECTS. 


(Part  2 


his  business  affairs  here,  giving  him  advice  as  to  what  he  should  do 
to  protect  his  property  against  his  generous  disposition  and  the  tempta- 
tion to  lavish  expenditure,  and  stated  to  him  that  perhaps  he  was  not 
aware  that  his  marriage  had  annulled  the  will  which  he  made  before 
leaving  this  country,  but  that  such  was  the  fact.  This  was  about  nine 
months  after  the  marriage.  This  statement  of  the  law  as  to  the  rev- 
ocation of  his  will  by  marriage  was  erroneous,  as  a  statement  of  the 
law  of  New  York  where  the  testator  was  domiciled  when  he  left  this 
country.  By  that  statement  he  undoubtedly  was  assured  that  the  dis- 
position of  his  property  in  case  of  his  death  could  not  be  controlled  or 
affected  by  that  will.  He  died  in  Pennsylvania.  By  the  law  of  that 
state  a  testator's  marriage  is,  as  to  his  wife,  a  revocation  of  his  ex- 
isting will,  and  her  rights  in  his  property  on  his  death  are  the  same,  so 
far  as  that  will  is  concerned,  as  if  he  had  died  intestate.  But  Dr.  Har- 
rall  was  not  domiciled  in  that  state.  Nor  was  he  domiciled  here.  His 
domicile,  if  not  in  France,  was  in  New  York.  In  my  judgment  it  was 
in  the  former.  Though  he  did  not  die  in  this  state,  and  was  not  dom- 
iciled here  when  he  died,  his  personal  property  is  here,  and  his  will 
was  proved  here.  This  suit  is  therefore  brought  here.  Had  he  re- 
mained in  France  up  to  his  death,  the  complainant  would  have  been 
entitled  to  one-half  of  his  personal  property  She  should,  under  the 
circumstances,  be  decreed  to  have  the  same  right  here.  There  will  be 
a  decree  in  her  favor  accordingly.  She  is  entitled  to  costs,  payable  out 
of  the  estate.^* 


'^  DE  NICOLS  v.  CURLIER. 

(Holise  of  Lords,  1899,    [1900]  App.  Cas.  21,  69  L.  J.  Ch.  109.) 

Earl  of  HaIvSbury,  L.  C.^''  j\Iy  Lords,  it  is  not  necessary  to  state 
^  with  great  minuteness  how  the  question  in  the  present  appeal  arises. 
It  is  enough  to  say  that  two  French  subjects  were  married  according 
to  the  laws  of  France  on  May  30,  1854.  No  marriage  contract  or 
instrument  in  writing  was  executed  by  either  of  the  parties.  The  par- 
ties lived  together,  and  in  the  year  1863  they  came  to  England,  and  in 
the  year  1865  the  husband  obtained  the  status  of  a  naturalized  British 
subject. 

The  whole  dispute  turns  on  the  question  whether  the  changed  domi- 
cile and  naturalization  of  the  husband  aft'ected  the  wife's  rights  so  as 
to  give  the  husband  the  power  to  dispose  of  all  the  movable  property 
by  will  instead  of  being  restricted  to  the  power  of  disposing  of  only 
one  half  of  it,  as  he  undoubtedly  would  have  been  so  restricted  by 
French  law  if  the  French  law  is  decisive  of  the  question. 

36  Tbis  case  was  affirmed  by  the  court  of  Errors  and  Appeals  under  the 
name  of  Ilarral  v.  Ilarral,  39  N.  .T.  Eq.  279,  51  Am.  Rep.  17  (ISSl). 

s^  The  foneurring  opinions  of  Lord  Macnaghten,  of  Lord  Sliaud,  and  of 
Lord  Brampton  have  been  omitted. 


Ch.  3) 


FAMILY  LAW. 


595 


[The  learned  justice  here  commented  upon  the  French  law  and  con- 
tinued as  follows:] 

If  this  is  the  law  by  which  the  matter  is  to  be  governed,  it  cannot 
be  denied  that  the  appellant  here  must  succeed,  and  it  is  a  little  difficult 
to  understand  upon  what  principle  contracts  and  obligations  already 
existing  inter  se  should  be  affected  by  an  act  of  one  of  the  contracting 
parties  over  which  the  other  party  to  the  contract  has  no  control  what- 
ever. And,  indeed,  it  is  not  denied  that  if,  instead  of  the  law  creating 
these  obligations  upon  the  mere  performance  of  the  marriage,  the  par- 
ties had  themselves  by  written  instrument  recited  in  terms  the  very  con- 
tract the  law  makes  for  them,  in  that  case  the  change  of  domicile  could 
not  have  affected  such  written  contract.  I  am  wholly  unable  to  under- 
stand why  the  mere  putting  into  writing  the  very  same  contract  which 
the  law  created  between  them  without  any  writing  at  all  should  bar  the 
husband  from  altering  the  contract  relations  between  himself  and  his 
wife;  when  if  the  law  creates  that  contract  relation,  then  the  husband 
is  not  barred  from  getting  rid  of  the  obligation  which  upon  his  mar- 
riage the  law  affixed  to  the  transaction. 

A  written  contract  is  after  all  only  the  evidence  of  what  the  par- 
ties have  agreed  to,  and  it  would  seem  to  be  of  no  superior  force  as 
evidencing  the  agreement  of  the  parties  than  a  known  consequence  of 
entering  into  the  married  status.  I  not  only  do  not  understand,  but 
I  should  decline  to  assent  to  any  such  view,  unless  I  am  compelled  by 
authoritative  decision  or  statute  to  adopt  a  view  which  to  my  mind  is 
so  entirely  unreasonable.  And  it  does  not  appear  to  me  that  any 
court  before  whom  this  question  has  come  would  disagree  with  me 
as  to  its  being  unreasonable. 

The  Master  of  the  Rolls  himself  says :  "It  is  not  altogether  satis- 
factory to  hold  that  a  change  of  domicile  cannot  affect  an  express 
contract  embodying  the  law  of  the  matrimonial  domicile,  but  that  a 
change  of  domicile  does  affect  the  application  of  that  law  if  not  em- 
bodied in  an  express  contract." 

My  Lords,  I  should  think  that,  in  order  to  be  binding  on  your  Lord- 
ships, a  previous  decision  must  be  in  principle,  and,  as  applicable  to 
the  same  circumstances,  identical;  and  it  appears  to  me  that  the  case 
by  which  the  Master  of  the  Rolls  thought  himself  bound  (Lashley  v. 
Hog,  4  Paton,  581)  is  quite  distinguishable  both  in  principle  and  in  cir- 
cumstances. 

To  omit  other  questions,  the  cardinal  distinction  between  the  French 
and  the  Scottish  law  is  not,  I  think,  without  an  important  bearing  upon 
the  very  question  in  debate,  and,  I  think  it  may  be  stated  shortly  thus : 
If  the  wife  by  the  marriage  in  Scotland  acquired  no  proprietary  rights 
whatever,  but  only  what  is  called  a  hope  of  a  certain  distribution  upon 
the  husband's  death,  it  is  intelligible  that  that  right  of  distribution,  or 
by  whatever  name  it  is  called,  should  be  dependent  upon  the  husband's 
domicile,  as  following  the  ordinar}^  rule  that  the  law  of  a  person's  dom- 
icile regulates  the  succession  of  his  movable  property.     But  if  by  the 


.-o^ 


<>/!> 


d^^ 


■<M 


596  PARTICULAR  SUBJECTS.  (Part  3 

marriage  the  wife  acquires  as  part  of  that  contract  relation  a  real 

proprietary  right,  it  would  be  quite  unintelligible  that  the  husband's 

V*  act  should  dispose  of  what  was  not  his ;    and  herein,  I  think,  is  to  be 

found  the  key  to  Lord  Eldon's  judgment.     He  says  (4  Paton,  617): 

t^  "The  true  point  seems  to  be  this,  whether  there  is  anything  irrational 

^  /(^fi^ j\y  in  saying  that  as  the  husband,  during  the  whole  of  his  life  has  the  ab- 

f^^^\j  ''^     solute  disposition  over  the  property,  that  as  to  him,  whom  the  policy 

f,yT^  U*^^^*^  ^-^  ^^  ^^^  ^^^^  given  the  direction  of  the  family  as  to  the  place  of  its 


\>€^. 


iy^-" 


JkM.  V^  tiL*^    c/'       residence,  that  he  who  has  therefore  this  species  of  command  over 

'^   f^ffT^^  '\p    .  his  own  actions,  and  over  the  actions  and  property  which  is  his  own, 

^        /jjA  *       x/'*'       and  which  is  to  remain  his  own,  or  to  become  that  of  his  family  ac- 

^^  -T/'^    -A*'  cording  to  his  will — why  should  it  be  thought  an  unreasonable  thing, 

that,  where  there  is  no  express  contract,  the  implied  contract  shall  be 

taken  to  be  that  the  wife  is  to  look  to  the  law  of  the  country  where 

the  husband  dies  for  the  right  she  is  to  enjoy  in  case  the  husband 

thinks  proper  to  die  intestate." 

It  will  be  observed  that  the  whole  point  of  what  Lord  Eldon  argues 
is  that  the  whole  of  the  property,  apart  from  express  contract,  is  ab- 
solutely and  entirely  the  husband's,  and  that  as  by  law  he  can  dispose 
of  it  as  he  will,  it  is  not  unreasonable  that  he  should  be  at  liberty  to 
do  something  which  by  its  legal  effect  will  change  what  I  think  are 
inaccurately  described  as  the  rights  of  the  wife,  but  are  accurately  de- 
scribed as  what  would  have  been  the  rights  of  the  wife  if  no  change 
had  taken  place,  because  in  substance  she  has  until  the  husband's  death 
no  rights  at  all. 

Doubtless  it  is  true  that,  according  to  the  authorities  on  Scottish 
law,  the  right  of  the  wife  is  no  right  at  all  in  its  strict  sense.  When 
speaking  of  the  jus  mariti  it  is  described  as  a  legal  assignation  to  the 
husband,  and,  in  commenting  on  this  authority,  the  late  Mr.  Fraser, 
while  at  the  Scottish  Bar,  in  his  book  on  the  Law  of  Husband  and 
Wife  (2d  Ed.)  vol.  1,  p.  677,  says:  "At  a  very  early  period  of  our 
law,  the  distinction  between  the  two  rights  was  recognized.  The 
right  of  administration  was  regarded  as  being  nothing  more  than 
its  name  imports — a  right  of  administering  the  property  of  the  spouses ; 
while  the  jus  mariti  was  something  separate  and  superior,  its  purpose 
being  to  transfer  the  property  from  one  spouse  to  the  other.  The  dis- 
tinction is  settled  and  taken  in  a  number  of  cases  ranging  from  an  early 
period  to  the  present  time,  and  has  not  been  so  clearly  marked  in  some 
institutional  works,  solely  from  the  desire  of  the  writers  to  reconcile 
it  with  the  notion  of  an  absolute  veritable  communio.  *  *  *  The 
distinction  is  thus  stated  in  argument  in  the  Session  Papers  of  Gowan 
v.  Pursell:  The  jus  mariti  over  the  movables  is  a  right  during  the 
existence  of  the  marriage  of  absolute  property.  The  husband  may  sell 
or  squander,  or  waste  fully  destroy  the  movables  that  fall  under  com- 
munion." How  different  the  position  of  the  wife  is  under  the  French 
law  is  sufficiently  indicated  in  contrast  to  the  above  extract,  by  section 
1443  of  Code  Civil,  which  enacts  that:   "1443.  A  separation  of  prop- 


Ch.    3)  FAMILY  LAW.  597 

erty  can  only  be  judicially  sued  for  by  the  wife  whose  dowry  is  in 
danger,  and  when  the  disorder  of  the  husband's  affairs  is  such  that 
there  is  reason  to  fear  that  his  property  will  not  be  sufficient  to  satis- 
fy the  wife's  rights  and  claims.  Any  voluntary  separation  is  void." 
And  if  the  propositions  are  put  shortly — that  the  wife  acquires  no 
proprietary  rights  by  marriage  under  the  Scotch  law  at  all,  but  under 
the  French  law  acquires  a  real  proprietary  right,  the  distinction  be- 
tween the  two  systems  is  evident  enough.  The  communio  bonorum  in 
Scotland  is  a  mere  fiction.  In  France  it  is  a  reality,  and  in  England, 
as  the  Master  of  the  Rolls  says,  the  parties  to  the  litigation  now  being 
discussed,  Mr.  and  Mrs.  Hog,  were  both  English,  married  in  England, 
where  her  unsettled  property,  existing  and  after-acquired,  became  the 
property  of  Mr.  Hog  by  the  mere  fact  of  the  marriage,  and  gave  Mrs. 
Hog  no  proprietary  right  whatever  to  the  movable  property  in  ques- 
tion. 

Once  it  is  admitted  that  the  marriage  gives  a  proprietary  right  (and 
therein  is  the  importance  of  the  distinction  Lord  Eldon  took  between 
what  was  inaccurately  argued  in  that  case  as  a  proprietary  right  con- 
ferred by  the  fact  of  marriage,  and  a  real  proprietary  right  conferred 
by  specific  contract),  the  anomaly  pointed  out  by  the  Master  of  the 
Rolls  and  sought  to  be  explained  becomes  at  once  intelligible.  It  is 
only  material  as  illustrating  what  was  the  prevailing  train  of  thought 
in  the  minds  of  Lord  Eldon  and  Lord  Rosslyn.  Both  of  them  speak 
of  the  words  "implied  contract,"  by  which  I  presume  they  mean  im- 
plied from  the  relation  of  husband  and  wife,  and  not  unnaturally 
they  deduce  the  conclusion  that  if  it  is  implied  from  that  relation  only 
the  husband's  change  of  domicile  may  bring  with  it  the  consequential 
change  from  such  relation. 

Here^howifvpr   as  T  have  endeavored  to  point  out,  the  French  mar- 
riage confers  not  only  an  implied  but  an  actual  binding  partnership. 
proprietary  relation  fixed  by  the  law  upon  the  persons  of  the  spouses, 
the  bTTTdmg-nature  oi  which,  it  appears  to  me,  no  act  of  either  of  the  _ 
parties  contracting  inarriage  can  affect  or  qualify. 

I  can  only  account  for  the  a'bsolutely  inaccurate  use  of  the  Scottish 
term  ''jus  relictas"  as  arising  from  a  reference  to  a  dispute  that  appears 
to  have  existed  in  the  Scottish  authors  as  to  whether  those  rights  flow- 
ed from  the  communion,  whereas,  to  quote  again  from  Mr.  Eraser's 
book  (page  671),  where  he  says:  "It  has  been  found  in  accordance 
with  the  opinions  of  the  French  commentators,  of  Dirleton,  and  other 
lawyers  of  our  own  country,  that  the  jus  relictse  and  legitim  are  in 
all  respects  the  same,  that  they  are  mere  casual  contingent  rights 
during  the  subsistence  of  the  marriage,  existing  then  only  in  hope, 
and  coming  into  proper  rights  merely  at  its  dissolution,  that  they  are 
not  rights  of  division  of  a  fund  already  held  in  common,  but  rights 
of  debt  against  the  husband's  executors,  constituting  the  widow  and 
the  children  creditors,  whose  right  comes  into  being  by  the  husband's 


598  PARTICULAR  SUBJECTS.  (Part   2 

death,  and  secondary  creditors  too,  for  all  other  debts  must  be  paid 
before  theirs." 

It  is,  therefore,  as  I  understand,  that  Vv^hen  once  Lord  Eldon  came 
to  the  conclusion  that  the  husband  and  wife  had  become  Scottish  dom- 
iciled spouses,  the  property  not  affected  by  a  previous  complete  and  ir- 
revocable right  would  properly  be  distributed  according  to  Scottish 
law. 

It  follows,  therefore,  if  I  am  right,  that  that  case  is  not  binding  on 
your  Lordships,  and  that  we  are  at  liberty  to  decide  the  question  now 
in  dispute  in  accordance  with  reason  and  common  sense. 

I  therefore  move  your  Lordships  that  the  order  appealed  from  be 
reversed,  and  that  in  respect  of  costs,  as  I  understand  this  is  only  one 
question  in  the  summons  which  comprehends  other  questions  also  in 
debate,  the  costs  of  this  appeal  should  be  costs  in  the  summons. 


*. 


<i^. 

^c^ 


.-^ 


In  re  DE  NICOLS. 
DE  NICOLS  V.  CURLIER. 


Ae  (Chancery,  1900.    2  Cb.  Div.  410,  69  L.  J.  Ch.  680.) 

^^    jr  ^^    ^'  Kekewich,  J.^^     Undoubtedly  the  House  of  Lords  considered  and 

determined  merely  the  question  whether  the  marriage  contract  affected 
movable  goods  notwithstanding  the  change  of  domicile,  and  all  that 
^  was  said  must  be  read  with  reference  to  that  question,  as  the  only 

one  to  which  attention  was  directed.  Albeit  so  restricted,  the  decision 
proceeded  on  the  broad  principle  that  a  contract  operating  by  -force  of 
law  in  the  absence  of  expression  by  the  parties  is  as  complete  and  as 
obligatory  as  a  contract  expressed,  and  must  have  effect  given  to  it 
on  the  same  footing.  Unless,  therefore,  there  is  some  inherent  disabil- 
ity in  some  particular  property  to  be  bound  by  such  a  contract,  it 
must  equally  be  applied  to  and  enforced  against  all  falling  within  its 
scope,  and  this  is  according  to  the  language  of  the  Code  and  the 
evidence  given  in  explanation  of  it.  On  the  present  occasion  the 
court  is  asked  to  determine  whether  in  enforcing  the  contract  it  is 
right  to  include  freehold  and  leasehold  estates  in  England — that  is, 
what  we  term  real  estate  and  chattels  real,  as  distinguished  from  per- 
sonal estate  other  than  chattels  real  which  is  covered  by  the  decision 
of  the  House  of  Lords.  Assuming  that  these  freehold  and  leasehold 
estates  are  within  the  scope  of  the  contract,  it  is  impossible  to  avoid 
the  conclusion  that  they  are  affected  by  it,  unless,  to  repeat  what  has 
been  already  said,  there  is  a  disability  inherent  in  this  species  of  prop- 
erty. There  are,  therefore,  two  questions  for  consideration — one  of 
fact,  namely,  whether  these  estates  are  within  the  scope  of  the  contract ; 

8s>  TLe  statement  of  fiicts  has  been  omitted. 


Ch.    3)  FAMILY  LAW.  599 

the  other  of  law,  whether  they  can  be  affected  by  it.  The  first  question 
depends  on  the  evidence  which  was  before  the  House  of  Lords,  some 
further  evidence  given  by  affidavit  and  orally  on  the  hearing  of  the 
present  application,  and  additional  evidence  adduced  under  leave  given 
after  the  hearing  in  consequence  of  a  letter  from  one  of  the  witnesses 
which  was  communicated  to  the  court.  This  evidence  was  directed 
to  the  proper  meaning  of  "immeubles"  in  the  French  Code.  There 
is  no  difificulty  about  the  meaning  of  the  word  as  regards  the  character 
of  property  comprised  in  it.  It  means,  broadly,  the  soil  itself  and  that 
which  is  attached  to  the  soil  as  distinguished  from  that  which,  being 
unattached,  is  therefore  movable.  As  in  our  own  system  of  law  so  in 
that  of  France  some  things  are,  from  their  close  connection  with  the 
land,  treated  as  attached  to  it,  and,  therefore,  immovable;  but  these 
exceptions  do  not  impair  the  general  description,  and  are  of  no  import- 
ance here.  The  difficulty  which  arose  was  whether  the  term  com- 
prised immovables  abroad — that  is,  beyond  France.  The  words  of 
the  Code  are,  apparently,  wide  enough  to  cover  all,  wherever  situate, 
and,  if  it  could  be  treated  as  an  English  instrument  which  the  court  is 
competent  to  construe,  it  would  be  impossible  to  avoid  the  conclu- 
sion that  this  is  its  real  meaning.  But  to  arrive  at  a  conclusion  respect- 
ing the  construction  of  the  Code  in  this  particular  is  beyond  the  com- 
petence of  the  court.  It  is  a  matter  of  fact  with  which  the  court  can 
only  deal  according  to  the  testimony  of  those  qualified  to  give  it. 
Hence  the  oral  and  the  additional  evidence  subsequently  given,  to 
which  reference  has  already  been  made.  That  evidence  has  set  the 
matter  at  rest,  and  removed  all  difficulty.  It  may  be  stated  in  general 
terms  that,  unless  an  exception  is  established  in  a  particular  case  on  the 
ground  of  public  policy  (and  there  is  no  suggestion  of  that  here), 
the  provisions  of  the  Code  as  regards  "immeubles,"  are  of  universal 
application — that  is,  apply  equally  to  immovable  property  situate  in 
France  and  to  that  situate  in  a  foreign  country. 

Turning  now  to  the  question  whether  there  is  any  ojjjection  in_law 
to  the  contract  operating  accorctingTo^the'Tntentron  of  the  parties  so  as 
to  bind  tlfe" freehold  and  leasehold  estates,  one  is  at  once  confronted  by 
the  principle  wTiich  distinguishes  obligations  respecting  re^\  pstat.p 
from  those  wdiicli  affect  personal  estate.  That  principle  is  well  es- 
tablished, and  is~l6  be  found  stated  iiidrfferentlangaiage  in  many 
books.  It  will  suTKce  to  cife'one.  In  Story  on  the  Conflict  of  Law^s, 
§  158,  the  learned  author  says  this : 

"The  result  of  this  reasoning  (and  it  certainly  has  very  great  force) 
would  seem  to  be,  that  in  the  case  of  a  marriage  without  any  express 
nuptial  contract,  the  lex  loci  contractus  (assuming  that  it  furnishes 
any  just  basis  to  imply  a  tacit  contract)  will  govern  as  to  all  movable 
property,  and  as  to  all  immovable  property  within  that  country,  and  as 
to  property  in  other  countries,  it  will  govern  movables,  but  not  immov- 
ables, the  former  having  no  situs,  and  the  latter  being  governed  by  the 
lex  rei  sitae." 


fc 


& 


600  PARTICULAR  SUBJECTS.  (Part  3 

In  the  following  section  (159)  he  expounds  this  subject  in  a  manner 
so  apposite  to  the  case  in  hand  that  it  is  worth  while  to  quote  it  at 
length.    It  runs  thus : 

"Perhaps  the  most  simple  and  satisfactory  exposition  of  the  sub- 
ject, or,  at  least,  that  which  best  harmonizes  with  the  analogies  of  the 
common  law,  is,  that  in  the  case  of  a  marriage  where  there  is  no 
special  nuptial  contract,  and  there  has  been  no  change  of  domicile,  the 
law  of  the  place  of  celebration  of  the  marriage  ought  to  govern  the 
rights  of  the  parties  in  respect  to  all  personal  or  movable  property, 
wherever  that  is  acquired,  and  wherever  it  may  be  situate ;  but  real 
or  immovable  property  ought  to  be  left  to  be  adjudged  by  the  lex  rei 
sitae,  as  not  within  the  reach  of  any  extraterritorial  law.  Where  there 
is  any  special  nuptial  contract  between  the  parties,  that  will  furnish  a 
rule  for  the  case,  and,  as  a  matter  of  contract,  ought  to  be  carried  into 
effect  everywhere,  under  the  general  limitations  and  exceptions  belong- 
ing to  all  other  classes  of  contracts." 

According  to  the  decision  of  the  House  of  Lords,  there  is  here  ^ 
special  nuptial  contract  _between_tlie  parties^ascertahied  by  reference 
to  the  Oadg;""buf  not  less  precisely  ascertained  because  it  was  not  re- 
'duceH  into  writing  in  connection  with  the  particular  marriage.  It 
ought,  therefore  (to  adopt  the  language  just  quoted),  to  be  carried 
into  effect  everywhere,  but  under  the  limitations  and  exceptions  belong- 
ing to  all  other  classes  of  contracts,  one  of  which  is,  that  as  regards 
immovables,  the  lex  rei  sitae  must  prevail.  There  is  nothing  in  the 
common  law  of  England  to  make  the  contract,  which  we  have  already 
seen  to  be  definite,  unenforceable  respecting  the  freeholds  and  lease- 
holds in  question,  and  if  there  be  any  obstacle,  it  must  be  found  in  some 
statutory  provision.  There  is  none  but  the  statute  of  frauds,  but  that 
does  raise  a  formidable  objection.  Reference  was  made  in  argument 
to  both  the  fourth  and  seventh  sections  of  the  statute.  I  do  not  pro- 
pose to  consider  which  of  them  is  the  more  applicable,  because,  with- 
out doubt,  either  one  or  the  other  prohibits  the  creation  of  equitable 
interests  in  land,  such  as  sought  to  be  established  here,  except  by 
writing  under  the  hand  of  the  creator  of  the  trust.  Nevertheless,  it 
is  insisted  that  the  statute  has  no  application  to  the  circumstances  of 
this  case,  and  that  the  agreement  between  the  parties  made  in  consider- 
ation of  marriage  is  sufficiently  obligatory  notwithstanding  the  ab- 
sence of  any  writing.  That  is  the  point  I  am  called  upon  to  determine. 
It  is  settled  that  there  may  be  an  agreement  of  partnership  by  parol, 
notwithstanding  that  the  partnership  is  intended  to  deal  with  land, 
and  that  to  an  action  to  enforce  such  agreement  the  plea  of  the  stat- 
ute of  frauds  will  not  avail.  In  such  an  action,  therefore,  the  rights 
of  the  parties  to  the  land,  their  respective  interests  in  it,  and  their  mu- 
tual obligations  respecting  it,  may  and  must  be  determined  and  en- 
forced notwithstanding  there  has  been  no  compliance  with  the  stat- 
utory provision.  The  authorities  for  this  are  not  numerous,  but  they 
are  conclusive — namely,  Forster  v.  Hale,  3  Ves.  696,  5  Ves.  308,  4  R. 


Ch.    3)  FAMILY  LAW.  601 

R.  128,  and  Dale  v.  Hamilton,  5  Hare,  3G9.  In  the  latter  case  Wig- 
ram,  V.  C,  applied  this  ruling  to  a  case  where  the  partnership  was 
intended  to  deal  exclusively  with  land.  Lord  Lindley  in  his  work  on 
Partnership  (6th  Ed.)  p.  89,  says  that  the  latter  case  goes  a  long  way 
towards  repealing  the  statute  of  frauds,  and  that  it  is  difficult  to  recon- 
cile it  with  sound  principle  or  the  more  recent  decision  of  Caddick  v. 
Skidmore,  (1857)  2  De  G.  &  J.  52.  This  is  a  strong  adverse  comment, 
but  yet  I  am  bound  to  treat  the  decision  as  sound,  and  I  did  so  in 
Gray  v.  Smith,  43  Ch.  D.  208.  Whether  it  is  competent  for  the  Court  of 
Appeal  now  to  disturb  the  ruling  above  quoted  or  whether  being  compe- 
tent the  court  would  be  willing  to  do  so,  is  not  for  me  to  say;  but  at 
any  rate,  I  must  take  the  ruling  to  be  established.  It  by  no  means 
follows  that  I  ought  to  extend  it,  and  it  is  fairly  open  to  question 
whether  the  rule  obtaining  in  contracts  of  partnership  is  properly  ap- 
plicable to  a  contract  of  marriage.  In  one  sense,  no  doubt,  that  is 
also  a  contract  of  partnership;  but  no  one  would,  I  think,  venture  to 
rely  on  this,  the  ruling  in  the  two  cases  referred  to  having  reference 
to  commercial  partnerships  with  which  the  Court  was  there  exclusively 
concerned.  Nevertheless,  the  reasoning  of  the  Lord  Chancellor  in 
Forster  v.  Hale,  3  Ves.  696,  5  Ves.  308,  4  R.  R.  128,  seems  to  me  to 
show  that  he  intended  to  lay  down  a  general  rule,  which  may  be  ap- 
plied without  extension  to  the  case  in  hand.  This,  I  think,  was  the 
view  of  Wigram,  V.  C,  in  Dale  v.  Hamilton,  5  Hare,  369,  and  also,  as 
it  seems  to  me,  of  Lord  Lindley,  who  cites  the  passage  from  the  Lord 
Chancellor's  judgment  in  Forster  v.  Hale,  3  Ves.  696,  5  Ves.  308, 
4  R.  R.  128,  which  supports  it.  The  Lord  Chancellor  held  that  the 
question  whether  there  was  a  partnership  or  not  must  be  tried  as  a 
fact,  and  if  it  were  established  by  evidence  that  there  was  a  partner- 
ship, then  the  premises  necessary  for  the  purposes  of  that  partnership 
would  by  operation  of  law  be  held  for  the  purposes  of  that  partner- 
ship. It  is  established  here  by  evidence  that  land  acquired  by  either 
of  the  two  parties  to  the  contract  would  by  force  of  the  contract  be 
held  by  him  or  her  on  certain  terms  described  briefly  by  the  phrase, 
''community  of  goods."  Any  lands  subsequently  acquired  are  an  acqui- 
sition brought  within,  and  are  required  to  fulfill  the  purposes  of.  the 
contract,  and  according  to  the  Lord  Chancellor's  reasoning  they  are 
by  operation  of  law  held  for  those  purposes.  There  may  be  error 
in  this  way  of  stating  the  case  and  applying  the  Lord  Chancellor's 
ruling,  but  I  am  unable  to  discover  it,  and  must,  therefore,  hold  that 
the  freehold  and  leasehold  estates  are  as  much  subject  to  the  communi- 
ty of  goods  as  the  movables  which  have  been  held  subject  to  it  by  the 
decision  of  the  House  of  Lords. 


/ 


602      \  PARTICULAR  SUBJECTS.  (Part  2 

SAUL  V.  HIS  CREDITORS. 

(Supreme  Court  of  Louisiana,  1S27.    5  Martin  [N.  S.]  5G9,  16  Am.  Dec.  212.) 

Porter,  J.*"  The  tableau  of  distribution  filed  by  the  syndics  of  the 
insolvent,  was  opposed  in  the  court  of  the  first  instance ;  and  the  op- 
position being  sustained,  an  appeal  has  been  taken  to  this  court,  by  the 
syndics,  by  the  Bank  of  the  United  States,  the  Bank  of  Orleans,  and 
the  Bank  of  Louisiana. 

The  claims  admitted  by  the  judge  a  quo,  and  which  are  now  contest- 
ed here,  are : 

First,  that  of  the  children  of  the  insolvent  who  claim  as  privileg- 
ed creditors,  for  the  amount  inherited  by  them  from  their  deceased 
mother.     *     *     * 

From  the  facts  admitted  by  the  parties,  which  admission  makes  the 
statement  on  this  appeal,  it  appears:  That  Saul  and  his  wife  inter- 
married in  the  state  of  Virginia,  on  the  6th  of  February,  1794,  their 
domicile  being  then  in  that  state;  that  they  remained  there  until  the 
year  1804,  when  they  removed  to  the  now  state  of  Louisiana;  that 
they  fixed  their  residence  here,  and  continued  this  residence  up  to  the 
year  1819,  when  the  wife  died ;  that  after  their  removal  from  Virginia, 
and  while  living  and  having  their  domicile  in  this  state,  a  large  quan- 
tity of  property  was  acquired,  which  at  the  death  of  the  wife  remained 
in  the  possession  of  her  husband,  the  insolvent. 

The  children  claim  the  one-half  of  the  property,  as  acquests  and 
gains,  made  by  their  father  and  mother  in  this  state.  The  appellants 
contend,  that  as  the  marriage  took  place  in  the  state  of  Virginia,  by 
whose  laws  no  community  of  acquests  and  gains  was  permitted,  the 
whole  of  the  property  acquired  here  belonged  to  the  husband. 

This  statement  of  the  matter  at  issue  shows,  that  the  only  question 
presented  for  our  decision  is  one  of  law ;  but  it  is  one  which  grows 
out  of  the  conflict  of  laws  of  different  states.  Our  former  experience 
had  taught  us,  that  questions  of  this  kind  are  the  most  embarrassing 
and  difficult  of  decision,  that  can  occupy  the  attention  of  those  who 
preside  in  courts  of  justice.  The  argument  of  this  case  has  shown  us, 
that  the  vast  mass  of  learning  which  the  research  of  counsel  has  fur- 
nished, leaves  the  subject  as  much  enveloped  in  obscurity  and  doubt, 
as  it  would  have  appeared  to  our  own  understandings,  had  we  been  call- 
ed on  to  decide,  without  the  knowledge  of  what  others  had  thought  and 
written  upon  it. 

[The  learned  justice  here  examined  the  Spanish  law  and  concluded 
that  the  law  of  the  Partidas  was  limited  to  the  gains  made  in  the 
country  where  the  marriage  was  contracted,  and  excluded  from  its 
operation  property  acquired  after  a  change  of  residence.  After  re- 
ferring to  the  opinions  entertained  with  respect  to  the  question  in 

40  Portions  of  the  opinion  have  been  omitted. 


Ch.    3)  FAMILY  LAW.  603 

hand  by  French  and  Dutch  jurists,  the  learned  justice  continued  as 
follows:] 

An  examination  of  the  different  treatises  on  this  subject  has  con- 
vinced us,  that  the  greater  number  of  the  lawyers  of  those  countries, 
are  of  opinion,  that  in  settling  the  rights  of  husband  and  wife,  on 
the  dissolution  of  the  marriage,  to  the  property  acquired,  the  law  of 
the  place  where  it  was  contracted,  and  not  that  where  it  was  dissolved, 
must  be  the  guide.  Such  was  the  jurisprudence  of  the  Parliament  of 
Paris.  It  was  the  opinion  of  Dumoulin,  of  Boullenois,  of  Rodenburgh, 
of  Le  Brun,  of  Kroland,  of  Bouhier,  of  Stockmans,  of  Pothier,  and  it 
is  that  of  Merlin.  On  the  other  side  are  found  D'Argentre,  Cravette, 
Everard,  \^andermeulen,  the  Parliament  of  Rouen,  the  Supreme  Court 
of  Brabant,  and  that  of  Metz. 

But  it  is  evident,  the  opinions  of  the  greater  number  of  those  who 
think  that  on  the  dissolution  of  the  marriage,  the  law  of  the  place 
where  it  was  contracted  should  regulate  the  rights  of  the  spouses  to 
the  property  possessed  by  them,  is  founded  on  an  idea  which  first 
originated  with  Dumoulin,  that  where  the  parties  marry  without  an 
express  contract,  they  must  be  presumed  to  contract  in  relation  to  the 
law  of  the  country  where  the  marriage  took  place,  and  that  this  tacit 
contract  follows  them  wherever  they  go. 

It  is  particularly  worthy  of  remark,  that  Dumoulin,  the  founder  of 
this  system,  was  of  opinion,  that  the  statute  regulating  the  community 
was  real,  and  that  it  was  to  escape  from  the  consequences  of  this  opin- 
ion he  supposed  a  tacit  contract,  which,  like  an  express  one,  followed 
the  parties  wherever  they  went.  Such,  at  least,  was  the  opinion  which 
Boullenois  entertained  of  Dumoulin's  sentiments;  and  it  appears  sup- 
ported by  quotations  which  he  makes  from  his  works.  Boullenois, 
Traite  de  personalite  et  de  realite  des  lois,  Obs.  29,  p.  740,  757,  758. 

Some  of  those  who  have  adopted  the  conclusions  of  Dumoulin  in 
regard  to  the  marriage  contract,  treat  the  idea  of  a  tacit  agreement 
as  one  which  exists  in  the  imagination  alone.  But  the  greater  number 
seem  to  have  embraced  it ;  and  we  are  satisfied  it  is  the  main  ground  on 
which  the  doctrine  now  rests  in  France.  So  far,  therefore,  as  great 
names  can  give  weight  to  any  opinion,  it  comes  to  "us  in  a  most  im- 
posing shape,  but  to  our  judgment  it  is  quite  unsatisfactory. 

Admitting  it  for  a  moment  to  be  true,  that  when  parties  married 
there  was  a  tacit  contract  between  them,  their  rights  to  property  sub- 
sequently acquired,  should  be  governed  by  the  laws  of  the  countn- 
where  the  marriage  took  place ;  that  tacit  agreement  would  still  be 
controlled  by  the  positive  laws  of  any  country  into  which  they  might 
remove.  This  is  admitted  by  Dumoulin  himself,  who,  after  treating 
of  the  tacit  agreement,  and  stating  that  the  statute  is  not  legal  but 
conventional — "Statutarium  proprie  non  est  nee  legale,  sed  conventiti- 
um" — adds,  such  tacit  'convention  cannot  have  this  effect  in  another 
place,  where  there  exists  a  contrary  statute,  which  is  absolute  and  p:o- 
hibitive,  alias  si  statutum  esset  absolutum  et  prohibitorium,  non  ob- 


r       T        ^tr\%'^'^ 


604  PARTICULAR  SUBJECTS.  (Part  2 

stantibus  pactis  factis  in  contrarium:  tunc  non  haberet  locum  ultra 
fines  sui  terriorii.  Dumoulin  on  the  first  book  of  the  Code,  vebo  cone, 
de  Stat,  et  consuet.  loc.  Froland,  Memoires  sur  les  statuts,  chap.  4,  63. 

If  such  be  the  consequence  where  the  statute  is  prohibitive,  we  do 
not  see  why  the  same  result  should  not  follow  from  a  real  statute, 
which  regulates  things  within  the  limits  of  the  country  where  it  is  in 
force.  The  reason  for  both  is  the  same,  namely,  that  the  laws  of  the 
country  where  the  contract  is  sought  to  be  enforced,  are  opposed  to 
it.  Why  the  one  should  have  effect,  and  the  other  should  not,  we 
profess  to  be  unable  to  distinguish.  It  may  be  a  question  whether  the 
statute  is  real  or  not,  but  the  moment  it  is  admitted  to  be  so,  it -regu- 
lates all  property  acquired  within  its  authority;  then,  according  to 
the  principles  of  Dumoulin,  the  tacit  agreement  can  no  more  control 
it,  than  it  could  the  law  which  positively  forbade  such  tacit  agreement 
from  having  effect.  So  that  even  admitting  this  tacit  agreement,  we 
are  brought  back  to  the  point  from  which  we  started ;  that  is,  whether 
the  law  regulating  the  right  of  husband  and  wife  be  real  or  personal. 

But  without  agreeing  with  those,  who  have  treated  the  idea  of  Du- 
moulin as  one  purely  of  the  imagination,  we  think  that  he  gives  to 
this  tacit  consent  a  much  more  extended  effect  than  it  is  entitled  to ; 
that  in  supposing,  when  parties  marry,  they  intend  the  laws  of  the 
place  where  the  contract  is  made  should  govern  them  wherever  they 
go,  he  begs  the  question;  and  that  the  first  thing  to  be  settled  is, 
whether  these  laws  do  govern  them  wherever  they  go. 

We  are  now  treating,  let  it  be  remembered,  of  a  case  such  as  that 
before  us,  where  there  is  no  express  contract,  and  the  argument  is, 
that  the  parties  not  having  entered  into  an  express  agreement,  the 
presumption  must  be,  they  intended  their  rights  to  property  should 
be  governed  by  the  laws  of  the  country  where  they  married.  This  is 
admitted.  But  then  this  presumption,  as  to  their  agreement,  cannot 
be  extended  so  as  to  give  a  greater  effect  to  those  laws  than  they 
really  had.  If  it  be  true  those  laws  had  no  effect  beyond  the  limits 
of  the  state  where  they  were  passed,  then  it  cannot  be  true  to  suppose 
the  parties  intended  they  should  have  effect  beyond  them.  The  extent 
of  the  tacit  agreement  depends  on  the  extent  of  the  law.  If  it  had  no 
force  beyond  the  jurisdiction  of  the  power  by  which  it  was  enacted; 
if  it  was  real,  and  not  personal,  the  tacit  consent  of  the  parties  cannot 
turn  it  into  a  personal  statute.  They  have  not  said  so;  and  they  are 
presumed  to  have  contracted  in  relation  to  the  law,  such  as  it  was,  to 
have  known  its  limitation,  as  well  as  its  nature,  and  to  have  had  the 
one  as  much  in  view  as  the  other.  If  the  law  of  Virginia  should  have 
been,  that  for  twenty  years,  the  acquisitions  made  by  the  parties  be- 
longed to  one  of  them,  and  they  married  without  an  express  stipula- 
tion to  the  contrary,  they  would  be  presumed  to  have  contracted  in 
reference  to  this  limitation  of  time.  If,  on  the  contrary,  the  law  is 
limited  as  to  place,  the  tacit  agreement  which  is  founded  on  a  supposed 
consent  that  the  law  should  govern  them,  must  be  considered  to  have 


Ch.    3)  FAMILY  LAW.  605 

that  limitation  in  view.  In  one  word,  the  parties  are  presumed  to  have 
agreed,  that  the  law  should  bind  them  as  far  as  that  law  extended,  but 
no  further.  So  that  this  doctrine  brings  us  back  again  to  the  inquiry, 
was  the  statute  real  or  personal?  Did  it  extend  beyond  the  limits  of 
the  country  where  the  marriage  took  place,  or  did  it  not?  Whichever 
it  may  be  found  to  be,  the  parties  must  be  supposed  to  have  contract- 
ed. In  the  absence  of  any  thing  expressed  to  the  contrary,  we  cannot 
presume  they  intended  to  enlarge  or  restrain  the  operation  of  the  law. 

The  most  familiar  way  of  treating  this  idea,  of  tacit  contracts,  be- 
ing made  in  relation  to  the  laws  of  the  country  where  they  are  entered 
into,  is  to  say,  that  the  agreement  is  to  be  construed  the  same  way,  as 
if  those  laws  were  inserted  in  the  contract.  Now,  supposing  the  par- 
ties to  marry  in  Louisiana,  and  that  our  statute,  providing  for  the 
community  of  acquests  and  gains,  is  real  and  not  personal;  that  it 
divides  the  property,  acquired  while  in  this  state,  equally  between  the 
husband  and  wife,  but  does  not  regulate  that  which  they  gain  in  an- 
other country  to  which  they  remove :  the  insertion  of  this  law  in  a 
contract  would  be  nothing  more  than  a  declaration,  that  while  residing 
within  this  state,  there  should  be  a  community  of  acquests  and  gains. 
An  agreement,  such  as  this,  could  not  have  the  same  force  a;?  an  ex- 
press one,  by  which  the  parties  declared,  there  should  be  a  community 
of  acquests  and  gains,  wherever  they  went;  for  the  one  has  no  limi- 
tation as  to  place,  and  the  other  has.  The  maxim,  therefore,  which 
was  so  much  pressed  on  us  in  argument,  "Taciti  et  expressi  eadem  vis," 
is  only  true  where-  the  law,  to  which  the  tacit  agreement  refers,  con- 
tains the  same  provisions  as  the  written  contract. 

It  was  evidently  on  this  distinction  the  cases  of  Murphy  v.  Murphy, 
5  Mart.  (O.  S,)  83,  12  Am,  Dec,  475,  and  Gales  v,  Davis'  Heirs,  4 
Mart,  (O.  S.)  645,  were  differently  decided  in  this  court.  In  the  for- 
mer, there  was  an  express  contract,  that  there  should  be  a  community 
of  acquests  and  gains  between  the  parties,  even  though  they  should 
reside  in  countries  where  different  laws  might  prevail.  In  the  latter 
there  was  no  express  agreement;  and  the  parties  were  not  presumed 
to  have  made  a  tacit  one,  contrary  to  the  law  of  the  place  where  they 
married.  They  were  not  supposed  to  have  agreed,  that  a  real  statute, 
wdiich  governed  them  only  while  there,  was  to  follow  them  as  a 
personal  one,  and  regulate  their  property  in  another  state.  If  prin- 
ciples so  plain,  required  any  authority,  we  would  find  it  in  the  very 
author,  on  whom  the  appellants  principally  rely.  Dumoulin,  after 
stating  that  the  tacit  contract  will  be  controlled  by  a  law  that  is  con- 
trary to  it,  in  the  country  where  the  marriage  is  dissolved,  adds : 
"That  it  will  be  different,  where  the  agreement  is  express.  Nisi  ex- 
presse  de  tali  lucro  conventium  fuisset,  quia  pactio  bene  extenditur  ubi- 
que,  sed  non  statutum  mere."  Froland,  Memoires  sur  les  statuts,  cap. 
4,  p.  63. 

Having  thus  stated  the  reasons  why  this  doctrine  of  a  tacit  contract, 
cannot  be  admitted  by  us  to  the  extent  pressed  by  the  counsel,  it  only 


606  '       TARTicuLAR  SUBJECTS.  (Part  2 

remains  for  us  to  examine,  whether  the  law  of  the  Fuero  was  a  real, 
or  personal  statute.  We  consider  it  real.  It  appears  to  us  to  relate 
to  things,  more  than  to  persons ;  to  have,  in  the  language  of  D'Agues- 
seau,  the  destination  of  property  to  certain  persons,  and  its  preserva- 
tion in  families  in  view.  It  gives  to  the  wife  and  her  heirs,  the  one- 
half  of  that  which  would  otherwise  belong  to  the  husband.  Boul- 
ienois,  who  rejects  Dumoulin's  idea  of  a  tacit  agreement,  says  the 
statute  which  regulates  the  community  is  a  personal  one,  because  it 
fixes  the  state  and  condition  of  the  spouses ;  and  he  goes  so  far  as  to 
declare,  that  if  his  adversaries  will  not  allow  this  doctrine  to  be  cor- 
rect, then  the  statute  is  real,  for  on  no  other  ground  can  it  be  consider- 
ed personal.  We  think  the  state  and  condition  of  both  husband  and 
wife  are  fixed  by  the  marriage,  in  relation  to  every  thing  but  property, 
independent  of  this  law ;  and  as  it  regulates  property  alone,  it  is  not 
a  personal  statute.  Boullenois,  Traite  des  statuts,  cap.  5,  obs,  29,  p. 
751 ;  cap.  2,  obs.  5,  80. 

Upon  reason,  therefore,  but  still  more  clearly  on  authority,  we  think 
the  appellants  have  failed  to  make  out  their  case.  We  know  of  no 
question  better  settled  in  Spanish  jurisprudence,  and  what  is  settled 
there,  cannot  be  considered  as  unsettled  here.  The  jurisprudence  of 
Spain. came  to  us  with  her  laws.  We  have  no  more  power  to  reject 
the  one  than  the  other.  The  people  of  Louisiana  have  the  same  right 
to  have  their  cases  decided  by  that  jurisprudence,  as  the  subjects  of 
Spain  have,  except  so  far  as  the  genius  of  our  government,  or  our 
positive  legislation,  has  changed  it.  How  the  question  would  be  de- 
cided in  that  country,  if  an  attempt  were  made  there  on  the  authority 
of  French  and.  Dutch  courts,  and  law^yers,  to  make  them  abandon  a 
road  in  which  they  have  been  travelling  for  nearly  three  hundred 
years,  we  need  not  say.  The  question  is  sufficiently  answered  by  the 
auto  already  cited;  in  which  the  adoption  of  the  opinions  of  foreign 
jurists,  in  opposition  to  those  of  Spain,  is  reprobated  and  forbidden. 

We  conclude,  therefore,  that  a  community  of  acquests  and  gains 
did  exist  between  the  insolvent  and  the  mother  of  the  appellees,  from 
the  time  of  their  removal  into  this  state;  and  that  the  court  below 
cor^mitted  no  error,  in  placing  them  on  the  bilan  as  privileged  credi- 
tors, for  the  amount  of  those  acquests  which  remained  in  their  father's 
possession,  at  the  dissolution  of  the  marriage.     *     *     * 


v^ 


BROOKMAN  v.  DURKEE. 

^>\^     ^j<^  ,'i  "(Supreme  Ck)urt  of  Washington,  1907.    4G  Wash.  578,  90  Pac.  914,  12  E-  R.  A. 

"r      \^'     ^\^  [N.  S.1921.) 

-^"^.ljA       -A^f'        FuLLERTON,  J.     In  1849   Eugene  R.  Durkee,  then  domiciled  and 

jj*  "A  ^         having  his  residence  in  the  state  of  New  York,  intermarried  with  on>.' 

\^     j^V' t«     ^     Cynthia  H.  Durkee,  and  thereafter  lived  with  her  as  his  wife  in  that 

^*  ^    sff^^^     state  until  1889.     In  the  year  last  named  Mrs.  Durkee  died  intestate. 


yyy^ 


Ch.    3)  FAMILY  LAW.  GOT 

leaving  as  her  sole  heirs  at  law  the  respondents  in  this  action.     Dur-  ^^^  "^  tS^^^^ 

ing-  the  time  the  marriage  existed  Eugene  R.  Durkee  conducted  a  manu-     ^^^~'^ ^  p-^^ 


-\a'^' 


facturing  business  in  the  state  of  New  York,  and  accumulated  as  the    ,rKA* 
profits  of  such  business  a  considerable  fortune.     In  1888,  a  year  prior 
to  the  death  of  his  wife,  he  used  a  portion  of  the  fortune  so  accumu-     yV 
lated  in  the  purchase  of  certain  real  property  situated  in  Pierce  county,        ^    ,  -^ 

in  this  state,  and  in  1902  died  in  the  state  of  New  York,  leaving  a  will      v  J^       Jj]^ 

by  which  he  devised  the  property  to  the  appellants.  Neither  the  hus-  ^  '^ ^.i/  ^^ 
band  nor  wife  ever  resided  or  had  a  domicile  in  this  state.  The  re- 
spondents claim  that  the  real  property  mentioned  was  the  community 
property  of  Eugene  and  Cynthia  Durkee,  and  that  they  have  an  un- 
divided half  interest  therein  as  heirs  of  their  mother.  The  appellants 
claim  that  the  property  was  the  separate  property  of  Eugene  R.  Dur- 
kee, and  that  they  are  the  owners  of  the  whole  thereof  by  virtue  of 
the  will.  At  the  trial  it  was  conceded  that  the  rules  of  the  common 
law  governed  the  ownership  of  personal  property  acquired  by  a  hus- 
band in  the  course  of  trade  or  business  in  the  state  of  New  York,  and 
that  money  and  other  personal  property  accumulated  by  him  in  that 
state  became  his  sole  and  separate  property,  subject  to  his  absoltue  do- 
minion, and  that  the  wife  had  no  interest  therein  which  would  descend 
to  her  heirs  on  her  death  during  the  Hfetime  of  her  husband.  The 
court  held,  nevertheless,  that  the  real  property  purchased  in  this  state 
during  the  lifetime  of  the  wife  with  the  funds  so  accumulated  became 
the  community  property  of  the  husband  and  wife,  and  that  the  wife's 
heirs  inherited  an  undivided  one-half  interest  in  the  property  on  her 
death.  The  correctness  of  this  holding  presents  the  sole  question  to  be 
determined  on  this  appeal. 

The  statutes  of  this  state  defining  separate  and  community  property 
read  as  follows  (quotations  from  Ballinger's  Ann.  Codes  &  St.)  : 

"Sec.  4488.  Property  and  pecuniary  rights  owned  by  the  husband 
before  marriage,  and  that  acquired  by  him  afterwards  by  gift,  be- 
quest, devise  or  descent,  with  the  rents,  issues,  and  profits  thereof, 
shall  not  be  subject  to  the  debts  or  contracts  of  his  wife,  and  he  may 
manage,  lease,  sell,  convey,  incumber,  or  devise,  by  will,  such  prop- 
erty without  the  wife  joining  in  such  management,  alienation,  or  in- 
cumbrance, as  fully  and  to  the  same  effect  as  though  he  were  unmar- 
ried.    [Pierce's  Code,  §  3875.] 

"Sec.  4489.  The  property  and  pecuniary  rights  of  every  married 
woman  at  the  time  of  her  marriage,  or  afterwards  acquired  by  gift, 
devise,  or  inheritance,  with  the  rents,  issues,  and  profits  thereof,  shall 
not  be  subject  to  the  debts  or  contracts  of  her  husband,  and  she  may 
manage,  lease,  sell,  convey,  incumber  or  devise  by  will  such  property, 
to  the  same  extent  and  in  the  same  manner  that  her  husband  can, 
property  belonging  to  him.     [Pierce's  Code,  §  3867.] 

"Sec.  4490.  Property  not  acquired  or  owned  as  prescribed  in  the 
next  two  preceding  sections,  acquired  after  marriage  by '  either  hus- 
band or  wife,  or  both,   is  community  property.     The  husband  shall 


608  PARTICULAR  SUBJECTS.  (Part  2 

have  the  management  and  control  of  community  personal  property, 
with  a  like  power  of  disposition  as  he  has  of  his  separate  personal  prop- 
erty, except  he  shall  not  devise  by  will  more  than  one-half  thereof." 
[Pierce's  Code,  §  3876.] 

These  statutes,  the  respondents  assert,  make  no  distinction  between 
property  acquired  within  this  state  and  property  acquired  in  another 
state  and  brought  into  this  state,  but  that  under  these  statutes  all 
property  acquired  after  marriage  by  either  husband  or  wife,  not  ac- 
quired by  gift,  devise,  or  inheritance,  or  from  the  rents,  issues,  or 
profits  of  property  so  acquired,  whether  the  same  be  acquired  wholly 
within  this  state  or  in  some  other  state  and  brought  into  this  state 
is  community  property.  But  while  the  statute  broadly  construed, 
gives  countenance  to  the  contention  of  the  respondents,  we  cannot 
think  it  was  the  intention  of  the  Legislature  that  no  distinction  should 
be  made  between  property  acquired  wholly  within  this  state  by  the 
joint  efforts  of  husband  and  wife  and  property  acquired  by  them  else- 
where and  brought  within  this  state.  If  it  were  the  intent  of  the  stat- 
ute that  property  acquired  in  another  jurisdiction  and  brought  within 
the  state  should  become  community  property,  its  legality  might  be 
seriously  questioned.  It  would  destroy  vested  rights.  It  would  take 
from  one  of  the  spouses  property  over  which  he  or  she  had  sole  and 
absolute  dominion  and  ownership,  and  vest  an  interest  therein  in  the 
other;  and,  if  the  spouse  should  be  the  wife,  it  would  not  only  take 
away  her  absolute  title,  but  would  take  away  from  her  her  right  to  con- 
trol and  manage  the  property,  and  make  it  subject  to  the  separate 
debts  of  the  husband,  whether  or  not  she  derived  any  benefit  from 
their  contracting,  or  had  any  legal  or  moral  obligation  to  pay  them. 
Therefore,  without  entering  further  into  the  reasons  for  the  rule,  we 
are  clear  that  personal  property  acquired  by  either  husband  or  wife 
in  a  foreign  jurisdiction,  which  is  by  law  of  the  place  where  acquired 
the  separate  property  of  one  or  the  other  of  the  spouses,  continues 
to  be  the  separate  property  of  that  spouse  when  brought  within  this 
state ;  and,  it  being  the  separate  property  of  that  spouse  owning  and 
bringing  it  here,  property  in  this  state,  whether  real  or  personal,  re- 
ceived in  exchange  for  it,  or  purchased  by  it,  if  it  be  money,  is  also 
the  separate  property  of  such  spouse. 

While  this  question  has  not  been  directly  before  this  court,  analo- 
gous cases  sustaining  the  rule  can  be  found.  In  Freeburger  v.  Gazzam, 
5  Wash.  772,  32  Pac.  732,  certain  personal  property  had  been  seized  on 
an  execution  against  the  husband  for  which  the  community  was  liable. 
The  wife  sought  to  recover  the  property  seized  on  the  ground  that  it 
was  her  separate  property,  having  been  acquired  by  her  by  purchase  with 
money  which  she  acquired  in  the  state  of  Kansas  and  brought  into  this 
state.  The  court  held  the  property  to  be  her  separate  property,  saying 
that  the  property  was  her  separate  property  in  the  state  of  Kansas,  and 
did  not  change  its  status  by  being  brought  across  our  state  border.  In 
Elliott  V.  Hawley,  34  Wash.  585,  76  Pac.  93,  101  Am.  St.  Rep.  1016, 


Ch.    3)  FAMILY   LAW.  009 

it  was  held  that  real  property  purchased  in  this  state  by  a  married  wo- 
man hving  with  her  husband  with  money  earned  by  her  in  Alaska  was 
her  separate  property,  since  the  money  itself  was  by  the  laws  of  that 
territory  her  separate  property,  and  its  status  in  that  respect  was  not 
changed  by  being  brought  into  this  state.  This  case  is  precisely  in 
point,  and  would  be  controlling,  were  it  not  for  the  fact  that  the  de- 
cision of  the  question  was  not  necessary  to  a  decision  of  the  case,  as 
the  result  must  have  been  the  same,  had  the  property  been  determined 
to  be  community  property.  But  the  case,  taken  with  the  case  first 
cited,  shows  that  it  has  been  the  uniform  opinion  of  this  court  since 
its  organization  that  property  acquired  in  the  manner  the  property  in 
question  here  was  acquired  is  separate  property.  See,  also,  Dormitzer 
V.  German,  etc.,  23  Wash.  132,  62  Pac.  862.  The  rule  that  property 
acquired  in  a  foreign  jurisdiction,  which  is  there  the  separate  property 
of  one  of  the  spouses,  maintains  its  separate  character  when  brought 
into  a  state  having  community  property  laws,  prevails  also  in  Cali- 
fornia, Texas,  and  Louisiana.  Kraemer  v.  Kraemer,  52  Cal.  302 ; 
Estate  of  Burrows,  136  Cal.  113,  68  Pac.  488;  Oliver  v.  Robertson, 
41  Tex.  422;  Blethen  v.  Bonner,  30  Tex.  Civ.  App.  585,  71  S.  W. 
290;  Thayer  v.  Clarke  (Tex.  Civ.  App.)  77  S.  W.  1050;  Tanner  v. 
Robert,  5  Mart.  (N.  S.)  255;  Young  v.  Templeton,  4  La.  Ann.  254, 
50  Am.  Dec.  563. 

We  conclude,  therefore,  that  the  property  in  question  was  the  sepa- 
rate property  of  Eugene  R.  Durkee,  and  passed  to  the  appellants  on 
his  death  by  virtue  of  the  terms  of  his  will. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  instruc- 
tions to  enter  a  judgment  in  accordance  with  this  conclusion.'*^ 


GRAHAM  V.  FIRST  NATIONAL  BANK. 


(Court  of  Appeals  of  New  York,  1881.    84  N.  Y.  393,  38  Am.  Rep.  528.)      >*'*'''^</  t^J^ 

See  ante,  p.  345,  for  a  report  of  the  case.  (Vn.  •  i>/fV^^^ 

41  The  existence  of  a  lien  or  mortgage  on  the  husband's  property  for  the  JlQS^)  ' ' 
repayment  of  the  money  brought  -by  the  wife  into  the  marriage  community  is  ^       C/*'*^^ 
determined  by  the  law  of  the  domicile  of  the  parties  at  the  time  of  the  mar- 
riage.   In  re  j\Iyer  (N.  M.)  89  Pac.  246  (1907).     See,  also,  Bouati  v.  Welsch,  24  0 'L>^^'        '     K^ 


N.  Y.  157  (1861).  ^:^=^Lv3J^  '^^ 

Whether  or  not  a  debt  is  to  be  regarded  as  a  separate  debt  or  as  a  com-  — \L^^  '^  '  a       t^ 
munity  debt,  and  thus  chargeable  to  the  community  land  under  the  lex  rei      ^^^  ^» 

sitae,  depends  upon  the  law  of  the  place  of  contracting  and  domicile.     La    ^  jj^:i/'^        ayu^ 
Selle  V.  Woolery,  11  Wash.  337,  39  Pac.  663,  32  L.  R.  A.  73  (1895)  ;    Id.,  14    <  '^      .j^  ^t\i, 
Wash.  70,  44  Pac.  115,  53  Am.  St.  Rep.  855  (1896);  Clark  v.  Eltinge,  29  Wash.,.^^,^  ^^"^^         VM- 
215,  69  Pac.  736  (1902).  ^  yjJ^^^'^  ' 

LOB.CONF.L.— 39  fS;^*^"^"'*^ -Qyi^    • 


^;>^ 


610  PARTICULAR  SUBJECTS.  (Part  2 


r 


/-- 


SMITH  V.  McATEE. 


(Court  of  Appeals  of  Maryland,  iSG7.    27  Md.  420,  92  Am.  Dec.  G41.) 


Crain,  J.'*^  The  attachment  in  this  case  was  issued  by  the  appellee 
to  affect  the  proceeds  of  sale  of  the  real  estate  of  the  wife,  to  pay  the 
debt  of  the  husband.  The  facts  as  presented  in  the  record  are,  that 
KMcholas  Leister  and  wife  were  citizens  of  this  state  until  August, 
1854,  when  they  removed  to  Illinois,  where  they  resided  when  this 
attachment  issued.  Before  removing  from  the  state  Leister  became 
indebted  to  the  appellee,  who  has  always  resided  in  Washington 
county,  Maryland.  The  fund  in  controversy  was  derived  from  the 
sale  of  the  real  estate  of  Mary  Gehr,  the  mother  of  Sarah  Leister,  the 
wife  of  Nicholas. 

Mary  Gehr  died  in  1855,  leaving  real  estate  in  Washington  county, 
and  by  her  last  will  and  testament  devised  a  child's  share  of  said 
estate  to  Sarah,  the  wife  of  Nicholas.  In  January,  1856,  a  bill  was 
filed  in  the  circuit  court  for  Washington  county  against  Leister  and 
wife  and  the  other  devisees,  for  the  sale  of  the  real  estate  for  parti- 
tion. The  bill  was  answered  by  Leister  and  wife.  In  their  answer 
Sarah,  the  wife  of  Nicholas,  claimed  her  portion  of  the  estate  as 
her  sole  and  separate  estate,  free  from  the  debts  of  her  husband,  and 
insisted  that  the  same  should  not  be  divested  from  her  by  a  sale 
thereof.  Nicholas,  the  husband,  disclaimed  all  right,  title  or  interest 
at  law  or  in  equity  to  any  portion  of  the  estate  of  Mary  Gehr,  by 
virtue  of  his  marriage  with  the  said  Sarah  or  otherwise.  A  decree 
was  passed  in  the  cause  on  the  12th  of  August,  1856,  for  the  sale  of 
the  property,  and  in  the  decree  it  was  provided  that  the  proportion 
of  the  proceeds  of  the  sale  of  the  property,  allotted  to  Sarah,  should 
be  deemed  her  separate  estate,  for  her  sole  and  separate  use  and  bene- 
fit, free  from  any  claim  or  control  of  her  husband  or  his  creditors. 
After  the  sale  of  the  property  the  amount  of  the  proceeds  due  Sarah 
was  credited  to  her  sole  and  separate  use,  and  paid  over  to  the  ap- 
pellant as  her  attorney,  when  it  was  attached  by  the  appellee  to  pay  the 
debt  of  her  husband. 

At  the  trial  of  the  cause  two  bills  of. exception  were  taken  by  the 
appellant;  the  first  to  the  admissibility  of  evidence,  and  the  second 
upon  the  granting  of  the  plaintiff's  and  the  rejection  of  the  defend- 
ant's prayers.  To  arrive  at  a  proper  solution  of  the  questions  to  be 
determined  by  this  appeal,  we  must  ascertain  the  rights  of  Sarah,  the 
wife,  under  the  will  of  her  mother  and  the  proceedings  and  decree 
of  the  court,  and  whether  the  proceeds  of  the  estate  audited  to  her  and 
received  by  Mr.  Smith,  as  her  attorney,  were  liable  to  be  attached 
in  our  courts  for  the  payment  of  the  husband's  debt.  In  18-11  the 
Legislature,  recognizing  the  just  and  equitable  right  of  the  wife  to  the 

*2  The  statement  of  facts  has  been  omitted. 


Ch.    3)  FAMILY  LAW.  611 

enjoyment  of  her  real  estate,  passed  a  law  to  protect  the  real  estate 
of  the  wife  from  the  debts  of  the  husband.  This  legislation  in  favor 
of  the  wife  against  the  creditors  of  the  husband  so  favorably  im- 
pressed itself  upon  the  public  mind,  that  by  the  thirty-eighth  section 
of  the  third  article  of  the  Constitution  of  1851  the  Legislature  was  re- 
quired to  pass  laws  necessary  to  protect  the  property  of  the  wife  from 
the  debts  of  the  husband  during  her  life,  and  for  securing  the  same 
to  her  issue  after  her  death.  The  Legislature,  acknowledging  the 
wisdom  of  this  provision,  in  obedience  to  the  mandate  of  the  Consti- 
tution enacted  Laws  1853,  p.  323,  c.  245.  That  act  provides  that  all 
the  property  of  the  wife  acquired  or  received,  after  her  marriage,  by 
purchase,  gift,  grant,  devise,  bequest,  or  in  a  course  of  distribution, 
shall  be  protected  from  the  debts  of  the  husband,  and  not  in  any  way 
be  liable  for  the  payment  thereof.  And  to  effect  the  objects  of  the 
law,  the  wife  was  given  the  benefit  of  all  such  remedies  for  her  re- 
lief and'  security  as  then  existed  or  should  be  devised  in  the  Courts 
of  law  or  equity,  without  the  necessity  of  the  interposition  of  a  trustee. 
The  object  contemplated  by  this  law  is  too  clear  for  doubt;  by  its 
enactment  the  Legislature  intended  to  give  full  protection  and  security 
to  the  property  of  the  wife  against  the  creditors  of  the  husband,  as 
previous  to  its  enactment  the  cases  of  Peacock  v.  Pembroke  and 
Clarke,  4  Md.  280,  and  Turton's  Ex'rs  v.  Turton,  6  Md.  375,  had 
been  decided  by  this  court,  and  in  each  case  the  property  was  ad- 
judged to  be  the  husband's  and  subject  to  the  payment  of  his  debts. 
This  act,  soon  after  its  passage,  received  a  judicial  interpretation  in 
the  case  of  Unger  and  Wife  v.  Price,  9  Md.  552.  In  that  case,  Mrs. 
Unger  had  sold  her  potential  right  of  dower,  and  invested  the  money  in 
personal  property,  and  it  was  held  by  this  Court  to  be  exempted  from 
the  debts  of  the  husband.  The  case  of  Mrs.  Leister  is  equally  strong, 
and  comes  within  the  principle  settled  in  Unger  and  Wife  v.  Price. 
She  was  the  devisee  of  real  estate,  and  with  the  consent  of  her  hus- 
band the  proceeds  of  sale  of  the  property  under  the  decree  of  a  court 
of  equity  were  held  to  her  sole  and  separate  use,  so  audited  to  her 
and  paid  over  to  the  appellant.  But  the  appellee  insists,  that  the 
proceedings  and  decree  were  not  admissible  evidence  against  him,  be- 
cause they  were  res  inter  alios  acta.  We  admit,  as  a  general  rule, 
that  judgments  and  decrees  are  evidence  binding  only  between  par- 
ties and  privies.  Bvtt  there  are  many  exceptions  to  this  rule,  and  we 
are  of  opinion  that  this  case  forms  one  of  the  exceptions  and  comes 
within  the  principle  settled  by  this  Court  in  the  case  of  Key  v.  Dent. 
14  Md.  98.  The  record  was  introduced  in  this  case  to  show  how  the 
fund  was  derived,  and  that  the  conversion  from  realty  into  personalty 
was  not  to  prejudice  the  rights  of  the  wife.  For  that  purpose,  ac- 
cording to  the  decision  in  Key  v.  Dent  and  the  authorities  relied  on 
by  Justice  Eccleston,  who  delivered  the  opinion  of  the  Court,  the  rec- 
ord was  evidence.  Head's  Rep's  v.  McDonald,  7  T.  B.  Mon.  (Ky.) 
207;    4  Phillips  on  Evidence  (Ed.  1843)  920,  921,  977.    The  record 


G12  PARTICULAR  SUBJECTS.  (Part  3 

was  confirmatory  of  the  answers  of  the  garnishee  and  proof  that  the 
decree  was  had  as  there  set  forth.  It  was  a  decree  of  a  Court  of  com- 
petent jurisdiction,  which  in  the  exercise  of  its  powers  as  a  court  of 
chancery  settled  the  property  to  the  sole  and  separate  use  of  Mrs. 
Leister.  And  although  we  find  this  right  of  the  wife  to  her  property, 
protected  in  this  state  by  public  policy,  by  statute  and  by  a  decree  of 
a  court  of  equity,  yet  it  was  earnestly  contended  by  the  learned  coun- 
sel for  the  appellee,  that  a  creditor  of  the  husband  had  a  right  to  at- 
tach this  fund  in  our  courts  of  justice  for  the  debt  of  the  husband,  as 
b}'  the  laws  of  Illinois,  where  the  husband  and  wife  resided,  the  hus- 
band was  entitled  to  all  the  personal  property  of  the  wife,  and  that  by 
virtue  of  this  law  of  the  domicil  the  fund  was  vested  in  the  husband. 
And  he  claimed  this  right  to  divest  the  wife  of  her  property  by  the 
law  of  the  domicile,  on  the  ground  of  comity.  In  this  case  we  can- 
not sanction  such  a  right,  for  it  has  been  decided  that  comity  is  over- 
ruled by  positive  law,  and  that  it  is  only  in  the  silence  of  any  particular 
rule,  affirming,  denying  or  restraining  the  operation  of  foreign  laws, 
that  courts  of  justice  presume  a  tacit  adoption  of  them  by  their  own 
government.  Gardner  v.  Lewis,  7  Gill,  395.  It  is  certainly  compe- 
tent for  any  state  to  adopt  laws  to  protect  its  own  property  as  well 
as  to  regulate  it,  and  "no  state  will  suffer  the  laws  of  another  to  inter- 
fere with  her  own,  and  in  the  conflict  of  laws,  when  it  must  often 
be  a  matter  of  doubt,  which  shall  prevail,  the  court  which  decides 
will  prefer  the  laws  of  its  own  country  to  that  of  the  stranger." 
Story's  Conflict  of  Laws,  §  28.  The  courts  of  our  state  have  perfect 
jurisdiction  over  all  personal  property  as  well  as  real  within  its  limits 
belonging  to  the  wife,  and  they  have  a  right  to  protect  both  from  the 
debts  of  the  husband.  If  therefore  our  legislative  enactment  in  re- 
gard to  the  property  of  the  wife  and  the  laws  of  Illinois  conflict,  it 
cannot  be  made  a  question  in  our  own  courts  which  shall  prevail. 
"Where  there  is  no  constitutional  barrier,  we  are  bound  to  observe 
and  enforce  the  statutory  provisions  of  our  own  state."  Davis  v.  Jac- 
quin,  5  Har.  &  J.  109 ;   Gardner  v.  Lewis,  7  Gill,  395. 

As  this  fund  by  our  laws  is  held  by  the  appellant  for  the  sole  and 
separate  use  of  Mrs.  Leister,  a  creditor  of  the  husband  seeking  a  rem- 
edy against  him  in  our  courts  must  be  governed  and  regulated  by  our 
laws;  for  Justice  Story  says  "a.  person  suing  in  this  country  must 
take  the  law  as  he  finds  it,  and  wherever  a  remedy  is  sought,  it  must 
be  administered  according  to  the  lex  fori ;  and  such  a  judgment  is  to 
be  given,  as  the  law  of  the  state  where  the  suit  is  brought,  author- 
izes." Story's  Conflict  of  Laws,  §§  571,  572.  And  in  this  court  in  the 
case  of  Wilson  &  Co.  v.  Carson  &  Co.,  12  Md.  75,  Le  Grand,  Chief 
Justice,  says:  "The  recognition  of  the  laws  of  another  state,  in  the 
administration  of  justice  in  this,  is  not  a  right  stricti  juris.  It  de- 
pends entirely  on  comity,  and  in  extending  it,  courts  are  always  care- 
ful to  see  that  the  statutes  of  their  own  state  are  not  infringed  to  the 
injury  of  their  own  citizens." 


Ch.  3) 


FAMILY  LAW. 


61S 


We  think  these  authorities  decisive  of  the  question,  and  that  the 
appellant  has  a  right  to  rely  in  a  court  of  law  upon  the  title  of  Mrs. 
Leister  to  the  fund  in  controversy.  Her  tight  had  not  been  divested 
by  her  own  act  or  by  operation  of  law,  and  the  fund  in  his  hands  was 
not  liable  to  be  attached  by  the  creditor  of  the  husband. 

The  views  which  we  have  expressed  of  the  legal  propositions  gov- 
erning this  case  are  conclusive  upon  the  right  of  the  plaintiff  to  re- 
cover, and  it  is  unnecessary  to  examine  the  first  bill  of  ex(ieptions,  to 
ascertain  whether  the  evidence  offered  by  the  defendant  of  the  laws 
of  Illinois  touching  the  rights  of  husband  and  wife  were  admissible 
or  not.  It  follows  from  what  we  have  said,  that  the  instructions  given 
by  the  court  at  the  instance  of  the  plaintiff  and  contained  in  the  second 
bill  of  exceptions  were  erroneous.  The  prayers  asked  by  the  defend- 
ant's counsel  embrace  in  our  opinion  the  true  theory  of  the  law  of 
the  case  and  ought  to  have  been  granted.  For  these  reasons  we  re- 
verse the  judgment  of  the  circuit  court. 

Judgment  reversed  without  procedendo.*' 


LONG  V.  HESS. 


(Supreme  Court  of  Illinois,  1895.    154  111.  482,  40  N.  E.  335,  27  L.  R.  A.  791. 

45  Am.  St.  Rep.  143.) 

This  was  a  bill  in  chancery  brought  by  William  Long  and  Catherine 
Gleim  against  George  Hess,  Louis  Hess,  Henry  Hess,  and  Mary  Kopf, 
the  children,  Christina  Hess,  the  widow,  and  Louis  Hess,  the  executor, 
of  Jacob  Hess,  deceased,  to  set  aside  the  will  of  Jacob  Hess,  and  to 
declare  a  trust  in  favor  of  the  complainants  in  two-sixths  of  the  estate 
of  the  testator.  Jacob  Hess  died  March  29,  1891,  in  La  Salle  county, 
where  he  had  lived  for  many  years ;  leaving  an  estate  consisting  al- 
most exclusively  of  lands  situate  in  that  county,  and  leaving  a  last 
will  by  which  he  gave  his  entire  estate  to  his  widow  for  life,  and,  after 
providing  for  the  payment  of  $100  each  to  the  complainants,  divided 
thcv  remainder  among  his  four  children  above  named. 

Jacob  Hess  and  Christina,  his  wife,  were  both  natives  of  the  grand 
duchy  of  Hesse,  now  a  part  of  the  German  empire.  Prior  to  their  mar- 
riage, in  1846,  Christina  Hess  was  the  widow  of  Bernhardt  Lang,  then 
lately  deceased,  and  the  complainants  are  her  children  by  her  former 
marriage.** 

43  The  capacity  of  a  wife  to  release  a  cause  of  actiou  for  personal  injuries 
without  the  consent  of  her  husband  has  been  held  to  be  governed  by  the  lex 
loci  delicti,  and  not  by  the  lex  domicilii,  of  the  parties.  Snashall  v.  Metro- 
politan R.  Co.,  19  D.  C.  (8  Mackey)  399,  10  L.  R.  A.  746  (1890). 

See,  in  general,  57  L.  R.  A.  353-374 ;  85  Am.  St.  Rep.  552-578.  As  to  what 
are  vested  property  rights,  see  84  Am.  St.  Rep.  437-450 ;  57  L.  R,  A.  363-366. 

*4  Only  so  much  of  the  statement  of  facts  is  given  as  is  necessary  for  an 
understanding  of  the  opinion. 


iV^ 


G14  PARTICULAR  SUBJECTS.  (Part  2 

Bailey,  J.^^  *  *  *  The  only  question  presented  by  the  record 
is  as  to  the  legal  effect  upon  the  property  acquired  by  Jacob  Hess  in 
this  state  of  the  ante-nuptial  contract  entered  into  in  Germany  be- 
tween him  and  his  then  intended  wife.  It  is  claimed  that  the  con- 
tract, when  considered  in  connection  with  the  judicial  proceedings 
had  thereon,  constituted,  in  legal  effect,  an  adoption  of  the  complain- 
ants by  Hess,  so  as  to  place  them  upon  the  same  footing,  so  far  as 
succession  to  his  property  and  estate  was  concerned,  with  the  children 
afterwards  born  of  the  marriage  then  in  contemplation.  And  it  is 
further  contended  that  by  the  rules  of  law  in  force  where  the  con- 
tract was  made,  and  which  entered  into  and  formed  a  part  of  it,  the 
property  then  owned  by  Hess  and  by  his  intended  wife,  as  well  as  that 
afterwards  acquired  by  them,  became  communal  property,  in  which 
the  children  of  the  family,  both  natur-al  and  adopted,  acquired  a  vested 
right,  and  that  Hess  could  not  by  will  divest  their  right  to  succeed 
to  such  estate  as  he  might  leave  at  his  death. 

After  considering  all  the  evidence,  we  are  left  in  very  grave  doubt 
whether  the  laws  of  the  grand  duchy  of  Hesse,  upon  which  reliance 
is  placed,  are  sufficiently  proved.  But  waiving  that  point,  and  assum- 
ing that  the  proof  is  sufficient,  and  that  the  rules  of  law  prevailing 
in  Hesse  at  the  date  of  the  contract  were  as  the  complainants  contend, 
the  question  remains  whether  the  antenuptial  contract  should  be  en- 
forced in  this  state,  as  to  property,  and  especially  real  property,  subse- 
quently acquired  by  Hess  in  this  state.  It  should  be  remembered  that 
at  the  date  of  the  contract  the  parties  were  living  at  Beerfelden,  in 
the  grand  duchy  of  Hesse,  and,  so  far  as  appears,  were  intending  to 
remain  there  permanently.  There  is  nothing  either  in  the  contract 
itself  or  in  the  evidence  having  the  least  tendency  to  show  that  their 
removal  to  any  other  place  was  then  contemplated.  The  evidence  fur- 
nished by  the  contract  is  all  in  the  direction  of  showing  that  their  in- 
tention was  to  make  Beerfelden  their  permanent  home.  The  agree- 
ment on  the  part  of  the  bride  was  "to  receive  the  groom  to  live  at 
her  house,"  and  the  contract,  after  certain  stipulations  as  to  the  prop- 
erty brought  into  the  marriage  by  the  groom,  and  as  to  the  rights 
of  the  children  of  the  bride  by  her  former  marriage,  concludes  with 
the  provision  that  "in  all  other  cases  not  especially  enumerated  herein 
the  contracting  parties  subject  themselves  to  the  general  laws  of  Ger- 
many, especially  the  rules  and  customs  of  the  country."  In  point  of 
fact,  Jacob  Hess,  after  his  marriage,  took  up  his  residence  at  his  wife's 
house,  and  made  that  his  domicile,  and  thereupon  engaged  at  that  place 
in  the  business  of  a  baker,  which  he  carried  on  for  five  years.  He 
then  sold  out  his  property  there,  and  emigrated  to  the  United  States. 
It  should  also  be  obse.rved  that  there  is  a  total  absence  of  any  express 
provision  in  the  contract  making  it  applicable  to  the  future  acquisi- 
tions of  the  contracting  parties.    It  deals  with  the  property  they  then 

*5A  portion  of  the  opinion  lias  been  omitted. 


Ch.    3)  FAMILY  LAW.  615 

possessed,  but  makes  no  reference  to  such  as  they  might  afterwards 
gain.  The  only  language  in  the  contract  on  which  any  reliance  is 
placed,  as  having  reference  to  future  acquisitions,  is  the  following: 
"As  regards  their  worldly  success  and  subsistence,  the  bride  agrees 
to  receive  the  groom  to  live  at  her  house."  If  these  words  are  cor- 
rectly translated  from  the  original  German,  in  which  the  contract  was 
written — and  we  have  heard  no  suggestion  that  they  are  not — they 
are,  to  say  the  least,  extremely  ambiguous,  and  we  are  able  to  put  upon 
them  no  rational  construction  which  would  make  out  of  them  an 
agreement  to  subject  the  future  acquisitions  of  the  parties  to  the  pro- 
visions of  the  contract.  The  most  probable  and  natural  interpretation 
of  the  words  would  seem  to  be  that,  with  a  view  to  providing  for 
the  worldly  success  and  the  subsistence  of  the  family,  the  bride  agreed 
to  receive  the  groom  to  live  at  her  house.  They  cannot,  without  im- 
porting into  them  a  meaning  which  does  not  appear  upon  their  face, 
be  held  to  have  any  direct  reference  to  the  future  acquisitions  of  the 
contracting  parties,  and  especially  their  acquisitions  after  emigrating 
from  their  then  residence,  and  making  their  permanent  domicile  in  a 
foreign  country. 

The  property  rights  of  husband  and  wife,  as  affected  by  the  mar- 
riage contract  itself,  or  by  an  antenuptial  agreement,  where  the  mar- 
riage or  the  antenuptial  agreement  has  been  entered  into  in  a  foreign 
country,  have  always  presented  questions  of  no  little  perplexity  and 
difficulty.  Air.  Story,  in  his  treatise  on  the  Conflict  of  Laws  (section 
143),  says:  "The  principal  difficulty  is  not  so  much  to  ascertain  what 
rule  ought  to  govern  in  cases  of  express  nuptial  contract,  at  least 
where  there  is  no  change  of  domicile,  as  what  rule  ought  to  govern 
in  cases  where  there  is  no  such  contract,  or  no  contract  which  provides 
for  the  emergency.  Where  there  is  an  express  nuptial  contract,  that 
if  it  speaks  fully  to  the  very  point,  will  generally  be  admitted  to  gov- 
ern all  the  property  of  the  parties,  not  only  in  the  matrimonial  domicile, 
but  in  every  other  place,  under  the  same  limitations  and  restrictions 
as  apply  to  other  cases  of  contract.  But  where  there  is  no  express 
nuptial  contract  at  all,  or  none  speaking  to  the  very  point,  the  question 
what  rule  ought  to  govern  is  surrounded  with  more  difficulty."  The 
learned  author  then,  after  an  extended  examination  of  the  opinions 
of  the  leading  law  writers  in  this  country  and  in  Europe,  and  also  of 
the  decisions  of  the  Supreme  Court  of  Louisiana — the  only  court 
which  at  that  time  seems  to  have  given  these  questions  elaborate  and 
careful  consideration — lays  down  the  following  propositions,  which, 
as  he  says,  although  not  universally  established  or  recognized  in 
America,  have  much  domestic  authority  for  their  support,  and  have 
none  in  opposition  to  them:  "(1)  Where  there  is  a  marriage  between  *^yjl^*^ 
parties  in  a  foreign  country,  and  an  express  contract  respecting  their 
rights  and  property,  present  and  future,  that,  as  a  matter  of  contract, 
will  be  held  equally  valid  everywhere,  unless,  under  the  circumstances, 
it  stands  prohibited  by  the  laws  of  the  country  where  it  is  sought  to 


.gr 


€16  PARTICULAR  SUBJECTS.  (Part  2 

be  enforced.  It  will  act  directly  on  movable  property  everywhere. 
But,  as  to  immovable  property  in  a  foreign  territory,  it  will,  at  most, 
confer  only  a  right  of  action,  to  be  enforced  according  to  the  juris- 
prudence rei  sitae.  (2)  Where  such  an  express  contract  applies  in 
terms  or  intent  only  to  present  property,  and  there  is  a  change  of 
domicile,  the  law  of  the  actual  domicile  will  govern  the  rights  of  the 
parties  as  to  all  future  acquisitions.  (3)  Where  there  is  no  express 
contract,  the  law  of  the  matrimonial  domicile  will  govern  as  to  all  the 
rights  of  the  parties  to  their  present  property  in  that  place,  and  as 
to  all  personal  property  everywhere,  upon  the  principle  that  movables 
have  no  situs,  or  rather  that  they  accompany  the  person  everywhere. 
As  to  immovable  property,  the  law  rei  sitge  will  prevail.  (4)  Where 
there  is  no  change  of  domicile,  the  same  rule  will  apply  to  future  ac- 
quisitions as  to  present  property.  (5)  But  where  there  is  a  change 
of  domicile  the  law  of  the  actual  domicile,  and  not  the  matrimonial 
domicile,  will  govern  as  to  all  future  acquisitions  of  movable  prop- 
erty; and,  as  to  all  immovable  property,  the  law  rei  sitae."  Story, 
Confl.  Laws,  §  184  et  seq. 

The  propositions  thus  laid  down  by  Judge  Story  seem  to  have  re- 
ceived the  general  approval  of  the  courts  of  this  country,  so  far  as 
there  has  been  occasion  to  consider  them  since  he  wrote. 

[The  learned  justice  here  commented  upon  Fuss  v.  Fuss,  24  \Vis. 
256,  1  Am.  Rep.  180,  Castro  v.  lilies,  22  Tex.  479,  73  Am.  Dec.  277, 
Besse  v.  Pellochoux,  73  111.  285,  24  Am.  Rep.  242,  Decouche  v.  Save- 
tier,  3  Johns.  Ch.  190,  8  Am.  Dec.  478,  and  Scheferhng  v.  Huffman, 
4  Ohio  St.  241,  62  Am.  Dec.  281,  and  continued  as  follows:] 

We  are  therefore  of  the  opinion  that  the  antenuptial  contract  in  this 
case  is  not  applicable  to  real  property  acquired  by  Hess  in  this  state, 
after  his  immigration  to  this  country,  but  that  such  property  was  sub- 
ject to  disposition  by  him,  by  deed  or  will,  according  to  the  laws  of 
this  state.  His  will  therefore  must  be  held  to  be  valid,  so  as  to  vest 
in  his  devisees  a  title  which  must  prevail  over  any  rights  derived  by 
the  complainants  from  the  antenuptial  contract. 

We  are  unable  to  see  that  any  peculiar  force  is  to  be  given  to  the 
fact  that  the  complainants,  at  the  time  Jacob  Hess  and  wife  immigrated 
to  this  country,  were  infants,  and  therefore  incapable  of  consenting 
to  a  change  of  their  domicile,  or  of  waiving  any  rights  which  were  se- 
cured to  them  by  the  contract.  As  the  contract  cannot  be  held  to 
have  any  application  to  the  property  sought  to  be  reached  in  this  case, 
no  rights  of  theirs  were  affected  by  their  being  brought  to  this  coun- 
try, and  they  had  nothing  to  waive.  Even  if  it  be  admitted  that,  by 
reason  of  their  legal  adoption  by  Jacob  Hess,  they  would  have  been 
entitled  to  succeed  to  his  estate  at  his  death,  as  his  heirs  at  law,  the 
antenuptial  contract  furnished  no  obstacle  to  the  exercise  by  Hess  of 
his  right  to  dispose  of  his  estate  by  will,  and,  he  having  done  so,  noth- 
ing was  left  to  descend  to  the  complainants,  as  his  heirs  at  law.  Al- 
though the  complainants  may  have  acquired  the  status  of  adopted  chil- 


Ch.    3)  •  FAMILY  LAW.  617 

dren  and  heirs  at  law<»by  the  contract  and  judicial  proceeding's  had  in" 
Germany,  their  inheritance  of  after-acquired  real  estate  situated  in 
this  state  must  be  in  accordance  with  our  laws;  and  by  our  laws  a 
testator  has  an  absolute  right  to  dispose  of  his  property  by  will,  even 
to  the  exclusion  alike  of  his  natural  or  his  adopted  children.  We  are 
of  the  opinion  that  the  decree  of  the  circuit  court  is  justified  by  the 
evidence,  and  it  will  accordingly  be  affirmed.    Decree  affirmed. 


In  re  FlTZGERx\LD. 
(Coiu-t  of  Appeal,  1904.     1  Cli.  Div.'sTS,  73  L.  J.  Ch.  436.)  Wj" 

Appeal  from  the  decision  of  Joyce,  J.  [1903]  1  Ch.  933,  the  ques- 
tion being-  whether  a  restraint  on  the  right  of  alienation  of  a  life  in- 
terest, given  to  a  husband  in  his  wife's  property  by  a  marriage  contract 
in  Scotch  form,  was  valid  as  against  his  incumbrancers  in  England. 

By  a  settlement  in  English  form,  dated  September  20,  1862,  and 
made  in  contemplation  of  the  marriage  of  Sir  Gerald  Vesey  Fitz- 
gerald with  Miss  Lockhart,  Sir  Gerald's  father  covenanted  with  the 
trustees  that  his  heirs,  executors  or  administrators  would,  within  six 
months  after  his  death,  pay  to  the  trustees  the  sum  of  i6,000.,  to  be 
held  by  them  upon  trust  for  investment  as  therein  mentioned,  and  to 
pay  the  income  of  the  trust  fund  to  Sir  Gerald  and  his  assigns  during 
his  life,  and  after  his  death  to  Lady  Fitzgerald  during  her  life,  and 
after  the  death  of  the  survivor  to  stand  possessed  of  the  trust  fund 
in  trust  for  the  issue  of  the  intended  marriage  as  therein  declared. 

By  this  deed  Sir  Gerald  also  assigned  to  the  trustees  a  policy  of  in- 
surance for  £4,000.  upon  his  own  life  to  be  held  by  them  upon  the 
same  trust. 

On  the  same  day  a  marriage  contract  in  Scotch  form  was  executed 
by  Sir  Gerald  and  Miss  Lockhart,  whereby,  after  a  recital  of  the  Eng- 
lish settlement  and  in  consideration  of  the  provisions  therein  con- 
tained. Miss  Lockhart  assigned,  conveyed,  disposed,  and  made  over 
to  the  trustees  of  the  English  settlement  all  and  sundry  lands  and 
heritages,  goods,  gear,  debts,  and  sums  of  money,  and  generally  her 
whole  property  heritable  and  movable  (with  certain  specified  small 
exceptions),  to  be  held  by  the  trustees  in  trust  for  the  ends,  uses,  and 
purposes  after  mentioned,  namejy:  "First,  for  payment  of  the  ex- 
penses of  executing  this  trust;  second,  for  payment  of  the  free  annual 
proceeds  of  the  trust  estate"  to  Miss  Lockhart  "during  all  the  days 
of  her  life,  and  that  on  her  own  receipt  alone  exclusive  of  the  jus 
mariti  and  right  of  administration"  of  Sir  Gerald;  "third,  in  case 
the  said  Sir  Gerald  shall  be  the  survivor  of  the  spouses,  for  payment 
of  the  whole  free  annual  proceeds  of  the  estate  to  him  during  all 
the  days  of  his  life  after  the  death  of"  Miss  Lockhart,  "declaring 
that  all  payments  to  the  said  Sir  Gerald  shall  be  strictly  alimentary, 
and  shall  not  be  assignable  nor  liable  to  arrestment  or  any  other  legal 


r-^ 


G18  PARTICULAR  SUBJECTS.  (Part  2 

diligence  at  the  instance  of  his  creditors;  fourth,  on  the  death  of  the 
survivor  of  the  said  spouses  the  trustees  shall  pay  over  or  assign  the 
whole  trust  funds  and  estate  in  their  hands"  to  the  child  or  children 
of  the  marriage  as  therein  mentioned. 

Both  deeds  were  executed  in  Scotland. 

On  September  23,  1862,  the  marriage  was  solemnized  in  Scotland. 
At  the  time  of  the  execution  of  the  deed  Sir  Gerald  was  domiciled 
and  resident  in  England  and  Miss  Lockhart  was  domiciled  and  resi- 
dent in  Scotland.  After  the  celebration  of  the  marriage  Sir  Gerald 
continued  to  reside  in  England  and  retained  his  English  domicile. 
The  original  trustees  of  the  setttlement  (six  in  number)  were  (with 
one  exception)  Englishmen  resident  in  England.  At  the  time  when  the 
summons  before  Joyce,  J.,  was  issued  all  the  then  trustees  were  Eng- 
lishmen resident  in  England. 

The  funds  originally  comprised  in  the  Scotch  contract  consisted 
of  two  Scotch  heritable  bonds  for  the  respective  sums  of  £6,000.  and 
£7,200.,  which  were  secured  upon  heritable  or  immovable  property  in 
Scotland,  and  a  sum  of  £500.  cash,  which  was  paid  over  to  the  trus- 
tees for  investment,  and  was  invested  by  them  in  Consols.  The  herita- 
ble bonds  were  assigned  to  the  trustees  by  a  separate  deed.  At  the 
time  when  the  summons  was  issued  the  investment  of  part  of  the 
£7,200.  had  been  changed  into  English  securities.  By  Scotch  law 
heritable  bonds  of  this  character  are  treated  as  real  estate,  except  for 
certain  purposes  specified  in  the  Titles  to  Land  Consolidation  (Scot- 
land) Act  1868  (31  &  32  Vict.  c.  101)  §  117. 

There  was  only  one  child  of  the  marriage,  a  daughter,  born  on 
June  19,  1863. 

Lady  Fitzgerald  died  on  May  16,  1901. 

Between  the  years  1863  and  1901  Sir  Gerald  and  Lady  Fitzgerald 
created  in  England  various  incumbrances  upon  their  respective  in- 
terests under  the  English  and  Scotch  settlements,  in  some  of  which 
Miss  Fitzgerald  also  joined. 

Subsequently  Sir  Gerald  further  incumbered  his  life  interest  under 
the  two  settlements.  The  defendant  Colonel  Harford  was  the  first 
mortgagee  of  Sir  Gerald's  life  interest  under  the  Scotch  settlement. 

On  October  12,  1901,  the  summons  was  taken  out  by  the  trustees, 
who  were  all  then  domiciled  in  England,  asking  (inter  alia)  for  the 
determination  of  the  question  whether  Sir  Gerald  was  entitled  for 
his  life  to  the  income  of  the  trust  funds  comprised  in  the  Scotch  mar- 
riage contract  free  from  incumbrance  and  without  power  of  alienation, 
or  who  was  now  entitled  to  the  income. 

An  affidavit  was  made  by  Mr.  Graham  Murray,  formerly  Lord  Ad- 
vocate of  Scotland,  in  which  he  said:  "By  the  law  of  Scotland  it  is 
possible  for  a  person  to  create  a  life  interest  in  favor  of  another  per- 
son, and,  by  declaring  that  life  rent  to  be  alimentary,  to  exclude,  so 
far  as  the  life  interest  does  not  exceed  in  amount  a  reasonable  provi- 
sion, the  diligence  of  ordinary  creditors,  and  restrain  all  power  of 
anticipation.     Where,  therefore,  as  here,  a  lady  by  antenuptial  mar- 


Ch.    3)  FAMILY   LATV.  619 

riage  contract  conveys  her  funds  to  trustees,  it  is  possible  for  her 
to  create  a  life  rent  of  these  funds  in  favor  of  her  surviving  husband, 
and  to  exclude  his  ordinary  creditors  and  to  restrain  him  from  antici- 
pation." 

There  was  also  evidence  that  by  Scotch  law  "alimentary"  creditors 
of  the  husband  could  arrest  the  alimentary  provision,  but  that  no  other 
creditors  could  do  so,  and  also  that,  if  in  the  case  of  such  an  alimen- 
tary provision  the  husband  failed  to  maintain  the  children  of  the  mar- 
riage, they  would  be  entitled  to  attach  the  alimentary  provision  made 
for  him. 

Joyce,  J.,  held  that,  even  if  the  construction  and  effect  of  the  Scotch 
contract  were  properly  determinable  by  the  law  of  Scotland,  its  validity 
and  operation  must  be  determined  by  the  law  of  England;  and  that, 
inasmuch  as  the  prohibition  of  alienation  of  the  alimentary  provision 
was,  according  to  English  law,  repugnant  and  contrary  to  public  policy, 
the  husband's  mortgagees  were  entitled  to  receive  payment  of  the  in- 
come from  the  trustees. 

Sir  Gerald  appealed. 

Cozens-Hardy,  L.  J.,*®  read  his  judgment  as  follows:  The  first 
question  for  consideration  on  this  appeal  is  whether  what  I  may 
shortly  describe  as  the  Scotch  settlement  is  subject  to  the  law  of  Scot- 
land, or  whether  it  must  be  governed  by  English  law.  Now  this 
Scotch  settlement  dealt  with  the  property  of  a  domiciled  Scotch  lady, 
who  was  about  to  marry  a  domiciled  Englishman,  and  there  is  no 
doubt  that  the  "matrimonial  domicile"  was  English.  It  is  not  sug- 
gested that  a  permanent  residence  in  Scotland  after  the  marriage  was 
contemplated.  As  a  general  rule  the  law  of  the  matrimonial  domicile 
is  applicable  to  a  contract  in  consideration  of  marriage.  But  this  is 
not  an  absolute  rule.  It  yields  to  an  express  stipulation  that'  some 
other  law  shall  apply.  See  Van  Grutten  v.  Digby,  [1862]  31  Beav. 
561,  in  which  case  the  matrimonial  domicile  was  French,  but  the  con- 
tract, though  made  in  France  and  void  by  French  law,  was  neverthe- 
less treated  by  Sir  John  Romilly  as  valid  so  far  as  it  related  to  prop- 
erty within  the  jurisdiction.  See,  also,  Viditz  v.  O'Hagan,  [1899]  2 
Ch.  569.  The  decision  in  that  case  was  reversed  by  the  Court  of  Ap- 
peal, but  not  on  a  ground  in  any  way  affecting  this  point.  It  is  not 
necessary  that  there  should  be  an  express  stipulation.  It  is  sufhcient 
if  the  court  arrives  at  the  conclusion  that  the 'parties  in  fact  contracted 
with  reference  to  some  law  other  than  that  of  the  matrimonial  domi- 
cile. 

Applying  these  principles  to  the  Scotch  settlement,  I  find  several  im- 
portant indications:  (a)  The  great  bulk  of  the  property,  namely, 
£13,200.,  was  invested  in  heritable  bonds.  It  has  been  settled  by  a 
chain  of  authorities,  which  ought  not  now  to  be  reviewed  by  us,  namely, 
by  Grant,  M.  R.,  in  Johnstone  v.  Baker,  4  Madd.  474,  note,  by  Leach, 

4  6  The  concurring  opinion  of  A'aughan-Williams,  L.  J.,  and  the  dissenting 
opinion  of  Stirling,  L.  J.,  have  been  omitted. 


620  PARTICULAR  SUBJECTS.  (Part  2 

M.  R.,  in  Jerningham  v.  Herbert,  4  Russ.  388,  28  R.  R.  136,  and  by 
Wigram,  V.  C,  in  Allen  v.  Anderson,  [1846]  5  Hare,  163,  that  herita- 
ble bonds  must  be  regarded  in  our  courts  as  immovables.  If  so,  it 
can  scarcely  be  denied  that  the  lex  loci — i,  e,,  the  law  of  Scotland — must 
apply  to  the  extent  of  the  il3,300.  I  am  aware  that  there  has  been 
a  change  of  investment  of  part  of  this  sum  into  English  securities, 
but  this  change  cannot  alter  the  law  applicable  to  the  settlement.  I 
may  add  that,  as  to  the  £13,200.,  the  matter  does  not  rest  in  contract. 
There  is  an  actual  completed  assignment  of  the  heritable  bonds,  (b) 
There  was,  however,  iSOO.  cash  belonging  to  the  lady,  which  was  paid 
over  to  the  trustees  for  investment,  and  which  was,  in  fact,  invested 
in  Consols,  although  it  might  have  been  invested  in  heritable  securities 
in  Scotland.  It  seems  to  me  that  this  sum  cannot  fairly  be  treated  as 
intended  to  be  subject  to  a  different  law  from  that  which  is  applicable 
to  the  bulk  of  the  property,  (c)  The  whole  frame  of  the  settlement 
is  in  Scotch  form,  and  the  limitations  are  of  such  a  nature  that  they 
can  only  take  effect  if  Scotch  law  is  to  be  applied.  I  therefore  feel 
bound  to  treat  this  as  a  settlement  made  in  Scotland  by  a  domiciled 
Scotch  lady  of  Scotch  property,  in  Scotch  form,  and  subject  to  Scotch 
law.  The  trustees  of  this  Scotch  settlement  must  in  Scotland  follow 
the  Scotch  law,  and  their  residence  in  England,  or  their  English  domi- 
cile, is  irrelevant.  This  being  so,  it  follows,  in  my  opinion,  that  we  are 
bound  to  hold  that  Sir  Gerald  Fitzgerald  takes  such  interest,  and  such 
interest  only,  as  the  courts  of  Scotland  would  declare  him  entitled  to. 
Anstruther  v.  Adair,  2  My.  &  K.  513,  39  R.  R.  263.  There  ought  to 
be  no  difference  in  a  matter  of  this  kind  between  the  Court  of  Ses- 
sion and  the  High  Court.  The  nature  and  extent  of  his  interest  can- 
not depend  upon  his  domicile,  although  his  capacity  to  deal  with  his 
interest  may  perhaps  depend  upon  his  domicile.  To  take  the  some- 
what analogous  case  of  a  life  interest  in  English  property  given  by  the 
will  of  a  domiciled  Englishman  for  the  separate  use  of  a  married 
woman,  without  power  of  anticipation,  it  has  never,  so  far  as  I  am 
aware,  been  suggested  that  the  nature  and  extent  of  her  interest  varied 
according  as  her  domicile  was,  or  was  not,  English.  The  trust  would 
be  regarded  in  our  courts  as  valid  and  operative,  even  though  by  the 
law  of  her  domicile  neither  the  separate  use  nor  the  restraint  upon 
anticipation  was  recognised.  And,  on  general  principles,  the  same 
view  ought  to  be  adopted  by  the  courts  of  the  country  in  which  the 
married  woman  was  domiciled.  In  short,  by  the  law  of  England,  it  is 
the  Scotch  law  which  must  be  applied  to  this  Scotch  settlement. 

It  is,  however,  strongly  urged  that  a  strictly  alimentary  provision, 
for  an  adult  male  is  not  only  unknown  to  and  inconsistent  with  the 
provisions  of  English  law,  as  in  general  it  undoubtedly  is,  but  that 
it  is  contrary  to  public  policy,  and  ought  therefore  to  be  wholly  dis- 
regarded in  an  English  court.  I  cannot  adopt  this  argument.  There 
is  nothing  immoral  in  such  a  provision.     Indeed,  there  are  many  in- 


Ch.   3)  FAMILY   LAW.  621 

Stances  in  which  pensions  or  retiring  allowances  are  by  statute  made 
not  transferable,  or  liable  to  be  attached  by  any  legal  process.  I  may 
refer  to  the  pension  allowed  to  a  retiring  clergyman  under  the  Incum- 
bents' Resignation  Act  of  1871,  and  to  the  observations  of  the  Court 
of  Appeal  on  that  statute  in  Gathercole  v.  Smith,  [1881]  17  Ch.  D.  1. 
Moreover,  it  has  been  long  settled  that  at  common  law,  and  apart  from 
any  statutory  enactments  prohibiting  assignment,  certain  salaries  or 
pensions  are  inalienable.  For  example,  the  half-pay  of  an  officer.  In 
Flarty  v.  Odium,  [1790]  3  T.  R.  681,  1  R.  R.  791,  Lord  Kenyon  said: 
"I  am  clearly  of  opinion  that  this  half-pay  could  not  be  legally  as- 
signed by  the  defendant.  *  *  *  Emoluments  of  this  sort  are 
granted  for  the  dignity  of  the  state,  and  for  the  decent  support  of 
those  persons  who  are  engaged  in  the  service  of  it.  It  would  there- 
fore be  highly  impolitic  to  permit  them  to  be  assigned ;  ■  for  persons, 
who  are  liable  to  be  called  out  in  the  service  of  their  country,  ought 
not  to  be  taken  from  a  state  of  poverty.  *  *  *  j^  might  as  well 
be  contended  that  the  salaries  of  the  judges,  which  are  granted  to 
support  the  dignity  of  the  state  and  the  administration  of  justice, 
may  be  assigned."  In  the  following  year  the  same  question  came  up 
for  consideration  in  Lidderdale  v.  Duke  of  Montrose,  [1791]  4  T. 
R.  248,  250,  3  R.  R.  375.  This  was  an  action  by  an  officer  on  half- 
pay  against  the  Paymasters  General  of  the  Army  to  recover  ar- 
rears of  his  half-pay,  and  the  only  question  was  whether  an  assign- 
ment by  way  of  mortgage,  of  which  the  defendants  had  due  notice, 
justified  them  in  withholding  the  money  from  the  plaintiff.  The  court 
were  clearly  of  opinion  that,  "on  principles  of  public  policy,  as  well  as 
on  account  of  the  interest  of  the  officers  themselves,  by  law  such  as- 
signments were  void."  The  mortgagee  was  not  party  to  this  action, 
but  it  seems  to  have  been  thought  that  he  might  obtain  equitable  re- 
lief, and  he  accordingly  filed  a  bill  in  the  Exchequer.  See  Stone  v. 
Lidderdale,  [1795]  2  Anstr.  533;  3  R.  R.  632.  It  was  argued  that 
the  assignment  was  good  in  equity,  as  a  transfer  of  any  valuable  con- 
tingency or  possibihty,  if  made  for  good  consideration,  is  affirmed  in 
equity.  But  Macdonald,  C.  B.,  in  a  considered  judgment,  declined  to 
accept  this  view,  and  held  that  the  plaintiff  was  not  entitled  to  any 
relief  in  equity  in  respect  of  the  mortgage.  In  short,  he  declined  to 
affect  the  conscience  of  the  mortgagor  in  respect  of  future  instal- 
ments of  the  half-pay. 

In  my  opinion  it  is  impossible  to  disregard  this  "alimentary  provi- 
sion" on  the  ground  of  public  policy.  The  Scotch  court  would  declare 
that  the  interest  given  to  Sir  Gerald  cannot  be  assigned,  and  would 
disregard  the  claims  of  his  specific  mortgagees,  and  it  is  our  duty  to 
follow  and  adopt  the  Scotch  law.  Anstruther  v.  Adair,  2  My.  &  K. 
513,  39  R.  R.  263. 

But  then  it  was  urged  that  Sir  Gerald  could  bind,  and  did  bind, 
the  income  as  and  when  it  reaches  the  hands  of  the  trustees  in  Eng- 


622  PARTICULAR  SUBJECTS,  (Part  2 

land,  and  that,  whatever  might  be  the  rights  of  his  alimentary  cred- 
itors, he  himself  ought  not  to  be  allowed  to  claim  from  the  trustees 
the  income  which  he  has,  by  a  contract  binding  on  his  conscience, 
charged  in  favor  of  his  mortgagees.  I  doubt  whether  this  doctrine, 
which  is  explained  and  illustrated  by  Lord  Macnaghten  in  Tailby  v. 
Official  Receiver,  [1888]  13  App.  Cas.  523,  543,  has  any  application 
to  a  vested  life  interest,  the  assignment  of  which  takes  effect,  if  at  all, 
for  reasons  wholly  independent  of  conscience.  An  assignment  of  a 
vested  equitable  interest  is  complete  and  operative,  though  voluntary. 
It  in  no  way  depends  upon  contract,  or  upon  anything  further  to  be 
done  by  the  assignor.  The  doctrine  applies  only  where  there  is  no 
present  property  capable  of  assignment,  such  as  possibilities  and  ex- 
pectancies. Stone  V.  Lidderdale,  2  Anstr.  533,  3  R.  R.  622,  is  an  au- 
thority against  the  respondent's  contention,  and  I  know  of  no  authority 
in  its  favor.  I  may  observe  that  the  defendant  Lidderdale  was  a 
domiciled  Englishman,  whose  general  capacity  to  contract  was  un- 
doubted. Moreover,  this  contention  is  really  only  another  way  of  pre- 
senting the  argument  that  we  ought  to  disregard  the  Scotch  law.  If 
i:he  life  interest  is  capable  of  assignmicnt,  the  court  would  grant  specific 
performance  of  the  contract,  and  would  aid  the  mortgagees  by  grant- 
ing an  injunction.  If,  however,  as  in  Stone  v.  Lidderdale,  2  Anstr. 
533,  3  R.  R.  622,  the  interest  is  non-assignable,  I  think  it  follows  that 
no  effect  can  be  given  to  a  deed  purporting  to  assign  by  way  of  antici- 
pation. The  decision  of  the  House  of  Lords  in  Scott  v.  Allnutt,  2 
Dow  &  C.  404:,  which  was  relied  upon,  does  not  really  touch  the 
case. 

In  my  opinion,  the  order  of  Joyce,  J.,  was  wrong,  in  so  far  as  it 
declared  that  the  whole  of  the  income  during  the  life  of  Sir  Gerald 
is  payable  to  his  assignees  or  incumbrancers,  according  to  their  re- 
spective priorities.  If  the  amount  of  the  income  were  very  large,  any 
excess  beyond  a  reasonable  amount  would,  according  to  the  Scotch 
law,  pass  to  the  assignees  or  incumbrancers,  but  I  do  not  understand 
that  it  is  suggested  that  there  is  any  excess  in  the  present  case.  I 
think  the  declaration  should  be  to  the  effect  that  Sir  Gerald  is  entitled 
to  the  whole  income  during  his  life,  free  from  the  claim  of  any  as- 
signees or  incumbrancers,  but  without  prejudice  to  the  rights  (if  any) 
of  his  alimentary  creditors,  or  of  Miss  Fitzgerald,  and  without  prej- 
udice to  any  prior  payment  in  respect  to  the  policy,  which  is  the  sub- 
ject of  another  appeal  by  Miss  Fitzgerald.*^ 


*T  It  has  been  held  that  the  parties  may  stipulate  for  the  application  of  a 
particular  system  of  law.  Este  v.  Smyth,  18  Beav.  112  (1854).  Contra:  Bour- 
cier  V.  Lanusse,  3  Martin,  581  (1815).  See,  also,  Westlake,  Priv.  Int.  Law,  75- 
79;  Dicey,  Conflict  of  Laws,  G37-G39;  Foote,  Priv.  Int.  Jurispr.  332-337. 

Husband  and  Wife— Parent  and  Child. — The  personal  rights  of  husband 
and  wife,  in  so  far  as  they  concern  their  personal  freedom  and  the  control  of 


Ch.  3)  FAMILY   LAW.  623 

parents  over  their  cliildren.  are  matters  of  police  and  subject  to  the  local  law. 
See  Minor,  Conflict  of  Laws,  §§  79,  83. 

As  to  duty  to  provide  support.  See  De  Brimont  v.  Penniman,  10  Blatchford, 
436  (1873);  McDonald  v.  McDonald,  8  Bell  &  Murray  (2d  Series)  331-3.34 
(1846) ;  Minor,  Conflict  of  Laws,  §  83.  In  regard  to  the  application  of  bastardy 
statutes,  see  Graham  v.  Monsergh.  22  Vt.  543  (18.50) ;  State  v.  Helmer,  21  Iowa, 
370  (1806) ;  Colbey  v.  People,  85  111.  330  (1877) ;  Moore  v.  State,  47  Kan.  772, 
28  Pa<?.  1072,  17  L.  R.  A,  714  (1892) ;  State  v.  Patterson,  18  S.  D.  251,  100  N. 
W.  162  (1904). 

Continental  Law. — a.  Marriage  Contract. — 1.  France. — The  ordinary  rules 
governing  contracts  apply  generally  to  marriage  contracts.  App.  Paris,  Dec. 
10,  1001  (D.  1905.  2,  128).  Where  the  intent  of  the  parties  does  not  appear 
from  the  surrounding  circumstances,  the  law  of  the  matrimonial  domicile  will 
usually  prevail.    Cass.  July  11,  1855  (D.  1856,  1,  9). 

In  regard  to  its  form,  the  lex  loci  applies.  Cass.  April  18,  1865  (S.  1865, 
1.  317).  But  it  has  been  held  that  a  compliance  with  the  national  law  of  the 
parties  is  sufficient.  App.  Douai,  Jan.  13,  1887  (D.  1887,  2,  121).  In  favor  of 
optional  character,  see,  also,  Institute  of  International  Law,  10  Aimuaire,  77- 
78.  art.  13). 

Imperative  rules  of  the  national  law  of  the  parties  in  regard  to  the  matri- 
monial property  regime,  constituting  in  reality  limitations  upon  their  capacity, 
will  be  binding  upon  them  everywhere.  Trib.  Civ.  Seine,  Aug.  20,  1884  (12 
Clunet,  70). 

Capacity  to  change  the  matrimonial  property  regime,  after  the  celebration 
of  the  marriage,  has  been  held  to  depend  by  some  courts  upon  the  national 
law  of  the  parties.  App.  Orleans,  Feb.  24,  19(H  (31  Clunet,  680) ;  Trib.  Civ. 
Seine,  March  21,  1907  (34  Clunet,  1124).  By  others,  upon  the  law  applicable  to 
the  matrimonial  regime  and  the  intent  of  the  parties.  Cass.  July  11,  1855  (S. 
1855,  1,  699).  By  others  again  upon  the  law  of  the  state  where  the  contract 
was  made.    App.  Toulouse,  May  7,  1866  (D.  1866,  2,  109). 

Article  1395,  French  Civil  Code,  which  provides  that  matrimonial  agree- 
ments cannot  be  altered  after  the  celebration  of  the  marriage,  has  been  held  to 
be  inapplicable  when  the  marriage  takes  place  outside  of  France.  See  note 
71  to  article  1395,  Sirey,  Les  Codes  Aunotes. 

2.  Germany. — According  to  article  15,  Law  Intr.  Civ.  Code,  a  marriage  con- 
tract may  be  entered  into  by  parties,  notwithstanding  their  national  law  at 
the  time  of  the  marriage  prohibits  it,  if  the  husband  subsequently  acquires  the 
(Jerman  nationality,  or  if  the  husband  and  wife,  being  foreigners,  are  resi- 
dents of  Germany. 

3.  Italy. — The  common  national  law  of  the  parties  will  apply  to  marriage 
contracts.  Art.  9,  Prel.  Disp.  Civ.  Code;  App.  Palermo,  July  10,  1899  (Foro 
It.  1900,  1,  501).  In  the  absence  of  a  common  national  law.  that  of  the  hus- 
band prevails.  Cass.  Turin,  April  26.  1878  (Monitore  1878,  p.  1093) ;  Cass. 
Turin.  Jan.  17,  1877  (Foro  It.  1877,  1,  764). 

b.  No  Marriage  Contract. — 1.  France. — The  intention  of  the  parties  pre- 
vails, which,  if  not  expressed,  will  be  gathered  from  the  surrounding  circum- 
stances. Cass.  July  IS,  1905  (33  Clunet,  446) ;  Cass.  March  9,  1891  (IS  Clunet, 
549).  No  presumption  seems  to  exist  either  in  favor  of  the  law  of  the  matri- 
monial domicile  or  in  favor  of  their  common  nationalitv.  App.  Paris.  Dec. 
7.  1887  (D.  1888,  2,  265)  and  note  by  Ch.  de  Boeck ;  Trib.  Civ.  Millau,  Julv  18, 
1903,  and  Montpellier,  April  25.  1904  (32  Clunet,  377).  Contra,  and  in  favor  of 
the  law  of  matrimonial  domicile.  App.  Lyon,  Feb.  10,  1903  (31  Clunet,  401). 

A  change  of  nationality  has  no  effect  upon  the  matrimonial  property  regime. 
Trib.  Civ.  Seine,  Dec.  28,  1900  (D.  1902,  2,  193),  and  note  by  Ch.  de  Boeck. 

The  above  rules  apply  equally  to  personal  and  real  propertv.  Cass.  Jan.  30, 
IS54  (D.  1854,  1,  61) ;  App.  Paris,  Feb.  5,  1887  (14  Clunet,  190) ;  Trib.  Civ. 
Versailles,  Aug.  3,  1893  (21  Clunet,  544).  Subject,  of  course,  to  the  ordinary 
rules  of  public  order.  Cass.  April  4,  1881  (S.  1883,  1,  65),  and  note  by  L. 
Renault'. 

Article  2121  of  the  Civil  Code,  which  gives  to  a  married  woman  a  lien  upon 
her  husband's  estate  for  the  proper  administration  of  her  property,  is  held  to 
be  intended  for  her  protection.  Hence  the  national  law  of  the  parties  is  ap- 
plied.   Cass.  jMay  20,  1S62  (S.  1862,  1,  673) ;  Cass.  Feb.  5,  1872  (S.  1872,  1,  190). 


624  PARTICULAR  SUBJECTS.  (Part  2 

2.  Germany. — The  national  law  of  the  husband  at  the  time  of  the  marriage 
governs  (article  15,  Law  Intr.  Civ.  Code),  subject,  however,  to  renvoi  (article 
27).     See,  also,  article  16,  Law  lutr.  Civ.  Code. 

A  change  of  nationality  on  the  part  of  the  husband  will  not  affect  the  prop- 
erty regime.  Article  15,  Law  Intr.  Civ.  Code;  6  R.  G.  223  (April  18,  1882). 
See,  also,  G.  Planck,  Biirgerliches  Gesetzbuch,  vol.  VI,  art.  15,  1  c. 

The  above  rules  do  not  apply  to  property  in  another  state  under  whose  law 
special  rules  obtain.    Article  28,  Law  Intr.  Civ.  Code. 

The  validity  of  gifts  between  husband  and  wife  has  been  held  to  be  governed 
by  their  personal  law  and  not  by  the  law  applicable  to  their  matrimonial  prop- 
erty regime.    R.  G.  Oct.  15,  1907  (Juristische  Wochenschrift  1907,  p.  155). 

3.  Italy. — The  common  national  law  of  the  parties  governs.  Article  6,  Prel. 
Disp.  Civ.  Code.  In  the  absence  of  a  common  nationality  that  of  the  husband 
prevails.  Trib.  Civ.  Naples,  May  4,  1877  (Foro  It.  1878,  1,  126) ;  App.  Turin, 
April  27,  1901  (Guirispr.  Torinese  1901,  p.  736). 

A  change  of  nationality  has  no  effect  upon  the  property  regime.  Cass.  Tu- 
rin, May  11,  1882  (Cass.  Torinese,  1882,  1,  377). 

The  Institute  of  International  Law  has  pronounced  itself  in  favor  of  the 
first  matrimonial  domicile  of  the  parties  unless  a  contrary  intent  appears 
from  the  surrounding  circumstances  (article  14).  It  favors,  also,  the  view 
that  the  matrimonial  property  regime  shall  embrace  both  the  movable  and 
immovable  property  of  the  parties,  except  such  immovables  as  are  subject  to 
a  special  law  (article  12),  and  that  the  property  rights  of  the  parties  shall  not 
be  affected  by  a  change  of  domicile  or  nationality  by  either  husband  or  wife, 
reserving,  however,  the  rights  of  third  parties  (article  15).  See  10  Annuaire, 
77,  78. 

With  respect  to  the  law  governing  marriage  contracts  and  matrimonial 
property  rights  in  the  absence  of  a  marriage  contract,  see,  also.  Draft  of  Con- 
vention signed  at  the  Hague  July  17,  1905  (Appendix  B,  II).  Consult,  fur- 
ther, E.  Audinet,  Observations  sur  les  effets  extraterritoriaux  des  regimes 
matrimoniaux,  2  Darras,  102-109 ;  Raoul  Jay,  De  I'immutabilite  des  conven- 
tions matrimoniales  en  droit  international,  12  Clunet,  527-537 ;  V.  Baligaud, 
Der  raumliche  Geltungsbereich  der  Rechtsatze  liber  den  Ehevertrag,  17  Nie- 
meyer,  202-223 ;  W.  Silberschmidt,  Die  Kollision  zwischen  ehelichem  Giiter- 
recht  und  Erbrecht  nach  deutschem  blirgerlichen  Rechte,  8  Niemeyer,  97-117. 

c.  Husband  and  Wife — Parent  and  Child. — The  national  law  of  the  parties 
governs.  Italy,  App.  Lucca,  April  14,  1882  (Foro  It.  1882,  1.  768).  Germani/. 
R.  G.  Feb.  15,  1906  (16  Niemeyer,  298) ;  O.  L.  G.  Dresden,  INIay  10,  1902  (12 
Niemeyer,  466).  This  rule  is  subject  to  renvoi.  Article  27,  Law  Intr.  Civ. 
Code.  German  law  will  apply  where  the  husband  has  lost  his  German  nation- 
ality, if  the  wife  has  retained  hers.     Article  14,  Law  Intr.  Civ.  Code. 

The  national  law  of  the  parent,  subject  to  the  rules  concerning  public  or- 
der, will  determine  the  rights  of  the  parent  with  respect  to  the  person  or 
property,  whether  real  or  personal,  of  the  child.  France,  Cass.  March  14, 
1877  (S.  1878,  1,  25).  Italy,  Genoa,  July  16,  1891  (Monitore  1891.  p.  823). 
Germany,  article  19,  Law  Intr.  Civ.  Code.  But  if  both  parents  have  lost,  and 
the  child  has  retained,  the  German  nationality,  German  law  will  govern.  Ar- 
ticle 19.  The  national  law  has  been  applied,  even  with  respect  to  the  reli- 
gions education  of  the  child.  K.  G.  April  5,  1906  (16  Niemeyer,  320) ;  K.  G. 
Feb.  2,  1901  (11  Niemeyer,  95). 

An  exception  to  the  application  of  the  national  law  exists  in  Germany  with 
respect  to  property  in  a  jurisdiction  under  whose  law  a  different  law  obtains. 
Article  28,  Law  Intr.  Civ.  Code. 

The  question  whether  the  child  has  a  lien  upon  the  property  of  the  par- 
ents for  the  faithful  performance  of  their  duties  as  administrators  of  his  es- 
tate depends  upon  the  national  law  of  the  parents  and  not  upon  that  of  the 
child.  France,  Cass.  Jan.  13,  1873  (S.  1873,  1,  13)  App.  Bordeaux,  July  23, 
1897  (S.  1900,  2,  89). 

The  national  law  governs,  also,  all  questions  relating  to  the  duty  to  provide 
support.  France,  Trib.  Tunis,  April  5,  1905  (33  Clunet,  135).  Where  the  na- 
tional law  makes  no  provision  for  support  the  lex  fori  has  been  applied,  for 
reasons  of  public  order,  to  foreigners  residing  in  France.  Cass.  July  22,  1903 
(D.  1904,  1,  197);    App.  Douai,  March  26,  1902  (30  Clunet,  599).     Italy.     The 


Ch.  3)  FAMILY   LAW.  625 

law  of  the  forum  applies  on  tbe  ground  of  public  order.  App.  Milan,  Feb.  23, 
1904  (Alonitore  1904,  p.  200). 

With  respect  to  the  rights  of  an  illegitimate  child  the  German  law  provides 
that  the  father's  duty  to  support  such  child  shall  be  governed  by  the  nation- 
al law  of  the  mother  at  the  birth  of  the  child.  But  no  greater  rights  can  be 
asserted  than  those  allowed  under  German  law.  Article  21,  Law  Intr.  Civ. 
Code.  In  France  and  Italy  an  action  against  the  father  for  the  maintenance 
of  an  illegitimate  child  will  not  lie  (la  recherche  de  la  paternite  est  interdite). 
Article  340,  French  Civ.  Code;    article  189,  Italian  Civ.  Code. 

See,  with  respect  to  the  law  governing  the  rights  and  duties  of  husband 
and  wife,  Draft  of  Convention,  Signed  at  the  Hague  July  17,  1905,  Appendix 
B,  II. 

LoE.CoNF.L.— 40 


ff 


G26  PARTICULAR  SUBJECTS.  (P^rt  3 

CHAPTER  IV. 


4  t? 


INHERITANCE. 


SECTION  1.— INTESTATE  SUCCESSION. 


MOEN  V.  MOEN. 

(Supreme  Court  of  South  Dakota,  1902.    16  S.  D.  210,  92  N.  W.  13.) 
See  ante,  p.  587,  for  a  report  of  the  case. 


ENNIS  V.  SMITH. 
(Supreme  Court  of  the  United  States,  1S52.     14  How.  400,  14  L.  Ed.  472.) 

Wayne,  J.2  *  *  *  por  several  hundred  years  upon  the  con- 
tinent, and  in  England,  from  reported  cases  for  a  hundred  years,  the 
rule  has  been,  that  personal  property,  in  cases  of  intestacy,  is  to  be 
distributed  by  the  law  of  the  domicile  of  the  intestate  at  the  time  of 
his  death.  It  has  been  universal  for  so  long  a  time  that  it  may  now  be 
said  to  be  a  part  of  the  jus  gentium.  Lord  Thurlow  speaks  of  it  as 
such  in  the  House  of  Lords,  in  the  case  of  Bruce  v.  Bruce,  2  Bos.  & 
Pul.  226.  Erskine,  in  his  Institutes  of  the  Law  of  Scotland  (B.  3, 
tit.  9,  §  4,  644),  says  this  rule  is  founded  on  the  laws  of  nations.  He 
says :  "When  a  Scotsman  dies  abroad  sine  animo  remanendi,  the 
legal  succession  of  his  movable  estate  in  Scotland  must  descend  to 
his  next  of  kin  according  to  the  law  of  Scotland;  and  where  a  for- 
eigner dies  in  this  country  sine  animo  remanendi,  the  movables  which 
he  brought  with  him  hither  ought  to  be  regulated,  not  by  law  of  the 
country  in  which  they  locally  were,  but  that  of  the  proprietors  patria, 
or  domicile  whence  he  came,  and  whither  he  intends  again  to  return. 
This  rule  is  founded  in  the  law  of  nations,  and  the  reason  of  it  is  the 
same  in  both  cases,  that  since  all  succession  ab  intestatio  is  grounded 
upon  the  presumed  will  of  the  deceased,  his  estate  ought  to  descend 
to  him  whom  the  law  of  his  own  country  calls  to  the  succession,  as  the 
person  whom  it  presumes  to  be  most  favored  by  the  deceased." 

The  law  of  Scotland  had  been  different  in  this  particular,  but  it 
was  brought  into  harmony  with  the  law  of  the  rest  of  Europe  by  the 
decision  of  the  House  of  Lords,  in  Bruce  v.  Bruce,  6  Brown's  Par. 
Cases,  550,  566,  2  Bos.  &  Pul.  226,  230,  231 ;  Lord  Stair's  Institutes, 
B.  3,  tit.  8,  §  5 ;  Hogg  &  Lashley,  P.  C.  577,  House  of  Lords,  June  25, 
1788;    Robertson  on   Personal   Success.   131;    Omman  v.  Bingham, 

2  A  portion  of  the  opinion  only  is  given. 


IRJL 


Ch.  4)  INHERITANCE.  627 

House  of  Lords,  March  18,  1776 ;  Colville  and  Landlord  v.  Brown  & 
Brown,  Diet.  Success.  Ap.  p.  1,  4 ;  W.  &  S.  28. 

The  earliest  case  reported  in  the  English  books,  is  that  of  Pipon  v. 
Pipon,  Amb.  6,  27.    Lord  Hardwicke  recognized  in  it  the  rule  that  the 
personal  estate,  in  cases  of  intestacy,  followed  the  person,  and  becomes 
distributable  according  to  the  law  or  custom  of  the  place  where  the^" 
Tntestate  Irv^ed.    Among  other  reasons  given  by  him  is,  that  a  contrafy  "^ 
TuTe^ouI^be  extremely  mischievous,  an(i  would  affect  our  commerce.     /      ^ 
No  foreigner  could  deal  in  our  funds  but  at  the  peril  of  his  effects-  /      »Hl 
going  according  to  our  laws,  and  not  those  of  his  own  country.     He    )  9 

reaffirmed  the  same  in  a  few  years  afterwards,  in  Thorne  v.  Watkins,  y 
2  Ves.  35.  Lord  Kenyon  did  the  same  when  he  was  Master  of  the 
Rolls  in  1787,  in  Killpatrick  v.  Killpatrick,  which  will  be  found  cited 
in  Robertson  on  Personal  Succession,  116.  In  1790,  the  House  of 
Lords  acted  upon  the  rule,  in  Bruce  v.  Bruce,  and  two  years  after- 
wards, in  Hogg  V.  Lashley.  Many  cases  followed  in  the  English 
courts,  and  the  only  question  since  has  been,  what  was  the  domicile 
of  the  intestate  at  the  time  of  his  death?  In  the  United  States  the  rule 
has  been  fully  recognized.  Olivier  v.  Townes,  2  Mart.  N.  S.  (La.) 
99;  Shultz  V.  Pulver,  3  Paige  (N.  Y.)  182;  Mundell  v.  Perry,  2  Gill 
&  J.  (Md.)  193,  224,  228.  f^n^^^^^^y^ 

The  rule  prevails,  also,  in  the  ascertainment  of  the  person  who  is  s^  fUL/J  • 
entitled  to  take  as  heir  or  distributee.  It  decides  whether  primo- 
geniture gives  a  right  of  preference,  or  an  exclusive  right  to  take  the 
succession;  whether  a  person  is  legitimate  or  not  to  take  the  suc- 
cession; whether  the  person  shall  take  per  stirpes  or  per  capita,  and 
the  nature  and  extent  of  the  right  or  representation.  Story's  Conflict 
of  Laws.*     *     *     * 


SECTION  2.— TESTAAIENTARY  SUCCESSION. 


CARPENTER  v.  BELL. 

(Supreme  Court  of  Tennessee,  1896.    96  Tenn.  294.  34  S.  W.  209.) 

Beard,  J.  The  will  which  is  the  subject  of  this  litigation  was  ex- 
ecuted by  a  feme  covert,  who  was,  at  the  date  of  its  execution,  as  well 
as  at  the  time  of  her  death,  a  resident  of  the  state  of  Kentucky,  and 

sAccord:  Pipon  v.  Pipon,  Ambl.  25  (1744) ;  Bempde  v.  Johnstone,  3  Ves.  Jr. 
198  (1796) :  Somerville  v.  Lord  Somerville,  5  Ves.  Jr.  750  (1801) ;  Bruce  v. 
Bruce.  2  Bos.  &  P.  230  (1790)  note;  Desesbats  v.  Berquier,  1  Bin.  (Pa.)  330,  2 
Am.  Dec.  448  (1808). 

Subsequent  retroactive  legislation  has  no  effect  upon  the  succession  to  per- 
sonal property.  Lvnch  v.  Provisional  Gov.  of  Paraguay,  L.  R.  2  P.  «&  D.  208 
(1871);   In  re  Aganoor's  Trusts,  64  L.  J.  Ch.  521  (1S95). 

Where  a  person  dies  without  natural  heirs,  the  personal  property  will  be- 


^ 


628  PARTICULAR  SUBJECTS.  (Part  2 

by  it  the  testatrix  undertakes  to  dispose  of  real  property  In  this  state. 
Notwithstanding  all  the  formalities  required  by  our  statutes  to  vali- 
date such  a  will  have  been  observed  in  this  case,  yet  it  is  insisted  that, 
as  the  law  of  Kentucky  incapacitates  a  married  woman  from  making 
a  disposition  of  such  property  by  last  will  and  testament,  this  inca- 
pacity follows  the  instrument  into  this  state,  and  defeats  the  devise 
of  realty  located  here.  The  bill  in  this  cause  is  filed  on  this  theory. 
This  contention  is  unsound,  as  is  well  settled  by  the  authorities.^As  tQ 
immovable  property,  the  rule  is  that  the  lexre^  sitae  govern^  as_to 
the  capacity  or  incapaj:itv~oT~tllFTe~statbr,  tlie  extentof  his  power  of 

'T}feposition,_and  the  forms  and  solemnities  necessarv  to  give  the  will 
fFsHdue^authorityjand  effect     Frilch.  WTlls,  §  53;   Williams  v.  Saun- 

~3ers7  5  Cold.TO;  Ror.  Int.  St.  Law,  288,  note-;  Story,  Confl.  Laws, 
§  474;  White  v.  Howard,  46  N.  Y.  144;  Ford  v.  Ford,  70  Wis.  19, 
33  N.  W.  188,  5  Am.  St.  Rep.  117.  The  result  is  that  the  decree  of 
the  chancellor,  dismissing  complainants'  bill,  will  be  affirmed,  with 
costs. 


UNITED  STATES  v.  FOX. 

(Supreme  Court  of  the  United  States,  1876.    94  U.  S.  315,  24  L.  Ed.  192.) 

Error  to  the  Court  of  Appeals  of  the  State  of  New  York. 

Field,  J.*  The  sole  question  for  our  consideration  in  this  case  is 
the  validity  of  a  devise  to  the  United  States  of  real  estate  situated 
in  the  state  of  New  York.  The  question  is  to  be  determined  by  the 
laws  of  that  state.  It  is  not  pretended  that  the  United  States  may  not 
acquire  and  hold  real  property  in  the  state,  whenever  such  property 
is  needed  for  the  use  of  the  government  in  the  execution  of  any  of 
its  powers;  as,  for  instance,  when  needed  for  arsenals,  fortifications, 
light-houses,  custom-houses,  court-houses,  barracks,  hospitals,  or  for 
any  other  of  the  many  public  purposes  for  which  such  property  is 
used.  And  when  the  property  cannot  be  acquired  by  voluntary  ar- 
rangement with  its  owners,  it  may  be  taken  against  their  will  by 
the  United  States  in  the  exercise  of  their  power  of  eminent  domain, 
upon  making  just  compensation — a  power  which  can  be  exercised  in 
their  own  courts,  and  would  always  be  resorted  to,  if  through  caprice 
of  individuals  or  the  hostility  of  the  state  Legislature,  or  other  cause, 
harassing  conditions  were  attached  to  the  acquisition  of  the  required 
property  in  any  other  way.  Kohl  v.  United  States,  91  U.  S.  367,  23 
L.  Ed.  449. 

long  to  the  state  in  which  it  is  found,  and  not  to  the  state  In  which  the  de- 
ceased was  domiciled.  In  re  Barnett's  Trusts.  [1902]  1  Ch.  847.  So  France, 
App.  Bordeaux,  Au?:.  17,  1853  (S.  1854,  2,  257);  Trib.  Civ.  Seine,  June  22. 
1897  (24  Clunet,  lO.'Jl),  semble. 

*The  statement  of  facts  has  been  omitted. 


Corrmck  v.  SuHivant,  10  Wheat.  202,  6  L.  Ed.  300.    The  povveTof  the 
state  in  this  respect  follows  from  her  sovereignty  within  her  limits, 


Ch.  4)  INHERITANCE.  629 

The  power  of  the  state  to  regulate  the  tenure  of  real  property  within 
her  limits,   and  the   modes  of  its  acquisition   and  transfer,   and   the 
rules  of  its  descent,  and  the  extent  to  which  a  testamentary  disposi- 
tion of  it  may  be  exercised  by  its  owners,  is  undoubted.     It  is  an  es^- 
tablished  principle  of  law,  everywhere_recog-nized.  arising   from  th^      /n  I 
necessity^ot^  the  case,  that  the  disposition  of  immovable  property,  wheth-       ' 
er  by^deedTde^scent,  or  any  other  mode,  is  exclusively  subiectto  the 
government  within  whose  jurisdiction  the  property  is  situated^     Mc 

as  to  all  matters  over  which  jurisdiction  has  not  been  expressly  or  by  v 

necessary  implication  transferred  to  the  federal  government.  The 
title  and  modes  of  disposition  of  real  property  within  the  state,  whether 
inter  vivos  or  testamentary,  are  not  matters  placed  under  the  control 
of  federal  authority.  Such  control  would  be  foreign  to  the  purposes 
for  which  the  federal  government  was  created,  and  would  seriously 
embarrass  the  landed  interests  of  the  state. 

Statutes  of  wills,  as  is  justly  observed  by  the  Court  of  Appeals,  are 
enabling  acts,  and  prior  to  the  statute  of  32  Hen.  VIII  there  was  no 
general  power  at  common  law  to  devise  lands.  The  power  was  op- 
posed to  the  feudal  policy  of  holding  lands  inalienable  without  the 
consent  of  the  lord.  The  English  statute  of  wills  became  a  part  of  the 
law  of  New  York  upon  the  adoption  of  her  Constitution  in  1777,  and, 
with  some  modifications  in  its  language,  remains  so  at  this  day.  Ev- 
ery person  must,  therefore,  devise  his  lands  in  that  state  within  the 
limitations  of  the  statute  or  he  cannot  devise  them  at  all.  His  power 
is  bounded  by  its  conditions.  That  statute  provides  that  a  devise  of 
lands  may  be  made  "to  any  person  capable  by  law  of  holding  real 
estate;  but  no  devise  to  a  corporation  shall  be  valid  unless  such  cor- 
poration be  expressly  authorized  by  its  charter  or  by  statute  to  take 
by  devise." 

The  term  "person"  as  here  used  applies  to  natural  persons,  and  also 
to  artificial  persons — bodies  politic,  deriving  their  existence  and  powers 
from  legislation — but  cannot  be  so  extended  as  to  include  within  its 
meaning  the  federal  government.  It  would  require  an  express  defini- 
tion to  that  effect  to  give  it  a  sense  thus  extended.  And  the  term  "cor- 
poration" in  the  statute  applies  only  to  such  corporations  as  are  created 
under  the  laws  of  the  state.  It  was  so  held  by  the  Court  of  Appeals 
in  White  v.  Howard,  46  N.  Y.  164,  165,  and  its  construction  of  the  I  n  J 
statute  is  conclusive  upon  us.  A._dgvise  to  the  United  States  of  reaL  ^yf^j^-^*^ 
property  situated  in  that  state  is,  there fore._:yoid^ 

Decree  affirmed.* 


\(^LJ-^ 


f.t^ 


So  as  to  the  formal  requirements  of  the  will.     Succession  of  Hasling,  114  ^t^j^jT^ 

La.  294,  38  South.  174  (1905).  'l^'*'/]^-/:^!? 

In  a  number  of  jurisdictions  it  is  sufficient  under  statute  that  the  \Yil]  in  v  ^^^M^ 

formal  respects  comply  with  the  law  of  the  place  where  it  was  executed.     See  Q^A'^  ^ 


S><7 


^ 


630  PARTICULAR  SUBJECTS.  (Part  2 

MOULTRIE  V.  HUNT. 

(Court  of  Appeals  of  New  York,  1861.     23  N.  T.  394.) 

Benjamin  F.  Hunt,  domiciled  in  Charleston,  S.  C,  executed  a  will, 
which  covered  both  real  and  personal  property,  in  accordance  with 
the  law  of  South  Carolina.  He  subsequently  removed  his  domicile 
to  New  York,  where  he  died,  leaving  personal  property  within  the 
state.  Under  the  Revised  Statutes  of  New  YorK"  one  of  the  requi- 
sites of  a  will  was  that  the  testator  should,  at  the  time  of  subscribing 
it,  or  at  the  time  of  acknowledging  it,  declare  in  the  presence  of  at 
least  two  attesting  witnesses  that  it  is  his  last  will  and  testament.  Such 
a  declaration  was  not  required  by  the  law  of  South  Carolina  and  was 
not  made  by  Hunt.  The  will  was  admitted  to  probate  by  a  decree  of 
the  surrogate  of  New  York  county,  N.  Y.,  as  a  will  validly  executed 
according  to  the  law  of  South  Carolina,  which  decree  was  affirmed 
by  the  Supreme  Court.  An  appeal  was  taken  to  the  Court  of  Ap- 
peals.** 

Denio,  j  6  *  *  *  'pjie  question  in  the  present  case  is  whether, 
inasmuch  as  the  testator  changed  his  domicile  after  the  instrument 
was  signed  and  attested,  and  was,  at  the  time  of  his  death,  a  resident 
-citizen  of  this  state,  he  can,  within  the  sense  of  the  law  of  comity, 
be  said  to  have  made  his  will  in  South  Carolina.  The  paper  which  was 
signed  at  Charleston  had  no  effect  upon  the  testator's  property  while 
he  remained  in  that  state,  or  during  his  lifetime.  It  is  of  the  essence 
of  a  will  that,  until  the  testator's  death,  it  is  ambulatory  and  revocable. 
No  rights  of  property,  or  powers  over  property,  were  conferred  upon 
any  one  by  the  execution  of  this  instrument;  nor  were  the  estate,  in- 
terest or  rights  of  the  testator  in  his  property  in  any  way  abridged 
or  qualified  by  that  act.  The  transaction  was,  in  its  nature,  inchoate 
and   provisional.      It   prescribed    the    rules    by    which   his    succession 

2  L.  R.  A.  (N.  S.)  426-430.  So  in  England  with  respect  to  British  subjects  un- 
der Ixird  KiiiKSdown's  Act  (24  &  25  Vict.  c.  114)  §§  1-2. 

So  as  to  validity  of  a  trust  in  real  property.  Jones  v.  Habersham,  107  U.  S. 
174,  2  Sup.  Ct.  336,  27  L.  Ed.  401  (1883) ;  Ford  v.  Ford,  80  Mich.  42,  44  N.  W. 
I0r)7  (1890) ;  Mount  v.  Tuttle,  183  N.  Y.  3;jS.  76  N.  E.  873,  2  L.  R.  A.  (N.  S.)  428 
(1906).    But  see  In  re  Piercy,  [1895]  1  Ch.  S3. 

So  as  to  effect  and  operation  of  a  will — e.  g.  whether  it  will  effect  a  con- 
version of  the  realty  into  personalty.  Ford  v.  Ford,  70  Wis.  19,  33  N.  W.  188, 
5  Am.  St.  Rep.  117  (1887) ;  Id..  72  Wis.  621,  40  N.  W.  502  (1888) ;  Clarke's 
Appeal,  70  Conn.  195,  39  Atl.  155  (1898),  affirmed  178  U.  S.  186,  20  Sup.  Ct. 
S73,  44  L.  Ed.  1028  (1900).  So  as  to  effect  of  a  devise.  West  v.  Fitz,  109  111. 
425  (1884).  So  as  to  effect  of  the  subsequent  birth  of  children  upon  the  will. 
Ware  v.  Wisner  (C.  C.)  50  Fed.  310  (1883).  Or  upon  a  devise.  Van  Wickle  v. 
Van  Wickle,  59  N.  J.  Eq.  317,  44  Atl.  877  (1899).  So  whether  after-acquired 
property  passes  under  the  will.     Applegate  v.  Smith,  31  Mo.  166   (1860). 

See,  in  general,  2  L.  R.  A.  (N.  S.)  408^69. 

5  This  statement  of  facts  has  been  substituted  for  that  of  the  oi-iginal  re- 
port. 

c  A  part  of  the  opinion  and  the  dissenting  opinion  of  Davies,  J.,  have  been 
omitted. 


Cll.    4)  INHERITANCE.  631 

should  be  governed,  provided  he  did  not  change  his  determination 
in  his  Hfetime.  I  think  sufficient  consideration  was  not  given  to 
this  pecuharity  of  testamentary  dispositions,  in  the  view  which  the 
learned  surrogate  took  of  the  case.  According  to  his  opinion,  a  will, 
when  signed  and  attested  in  conformity  with  the  law  of  the  testator's 
domicile,  is  a  "consummate  and  perfect  transaction."  In  one  sense 
it  is,  no  doubt,  a  finished  affair;  but  I  think  it  is  no  more  consummate 
than  a  bond  would  be  which  the  obligator  had  prepared  for  use  by 
signing  and  sealing,  but  had  kept  in  his  own  possession  for  future 
use.  The  cases,  I  concede,  are  not  entirely  parallel ;  for  a  will,  if  not 
revoked,  takes  effect  by  the  death  of  the  testator,  which  must  in- 
evitably happen  at  some  time,  without  the  performance  of  any  other 
act  on  his  part,  or  the  will  of  any  other  party;  while  the  uttering  of 
a  written  obligation,  intended  to  operate  inter  vivos,  requires  a  further 
volition  of  the  party  to  be  bound,  and  the  intervention  of  another 
party  to  accept  a  delivery,  to  give  it  vitality.  But,  until  one  or  the 
other  of  these  circumstances — namely,  the  death,  in  the  case  of  a  will, 
or  the  delivery,  where  the  instrument  is  an  obligation — occur,  the  in- 
strument is  of  no  legal  significancy.  In  the  case  of  a  will  it  requires 
the  death  of  the  party,  and  in  that  of  a  bond  a  delivery  of  the  mstru- 
ment,  to  induce  it  with  any  legal  operation  or  effect.  The  existence 
of  a  will,  duly  executed  and  attested,  at  one  period  during  a  testator's 
lifetime,  is  a  circumstance"  of  no  legal  importance.  He  must  die  leav- 
ing  such  a  will,  or  the  case  is  one  of  intestacy.  Betts  v,  Jackson,  6 
Wend.  173-181.  The  provisions  of  a  will  made  before  the  enactment 
of  the  Revised  Statutes,  and  with  entire  conformity  with  the  law  as 
it  then  existed,  but  which  took  effect  by  the  death  of  the  testator  after- 
wards, were  held  to  be  annulled  by  certain  enactments  of  these  stat- 
utes respecting  future  estates,  notwithstanding  the  saving  contained 
in  the  repealing  act,  to  the  effect  that  the  repeal  of  any  satutory  pro- 
vision shall  not  affect  any  act  done,  etc.,  previous  to  the  time  of  the 
repeal.  De  Peyster  v.  Clendening,  8  Paige,  395;  2  Rev.  St.  (1st  Ed.) 
p.  779,  §  5 ;  Bishop  v.  Bishop,  4  Hill,  138.  The  Chancellor  declared 
that  the  trusts  and  provisions  of  the  will  must  depend  upon  the  law 
as  it  was  when  it  took  effect  by  the  death  of  the  testator;  and  the 
Supreme  Court  affirmed  that  doctrine.  There  is  no  distinction,  in 
principle,  between  general  acts  bearing  upon  testamentary  provisions, 
like  the  statute  of  uses  and  trusts,  and  particular  directions  regard- 
ing the  formalities  to  be  observed  in  authenticating  the  instrument; 
and  I  do  not  doubt  that  all  'the  wills  executed  under  the  former  law, 
and  which  failed  to  conform  to  the  new  one,  where  the  testator 
survived  the  enactment  of  the  Revised  Statutes,  would  have  been 
avoided,  but  for  the  saving  in  the  seventieth  section,  by  which  the  new 
statute  was  not  to  impair  the  validity  of  the  execution  of  a  will  made 
before  it  took  effect.  2  Rev.  St.  (1st  Ed.)  p.  68,  pt.  2,  c.  6,  tit.  1. 
If,  as  has  been  suggested,  a  will  was  a  consummated  and  perfect  trans- 
action before  the  death  of  a  testator,  no  change  in  the  law  subsequently 


632  PARTICULAR  SUBJECTS.  (Part  2 

made  would  affect  it — the  rule  being,  that  what  has  been  validly  done 
and  perfected  respecting  private  rights  under  an  existing  statute  is 
not  affected  by  a  repeal  of  the  law,  Reg.  v.  Inhabitants  of  Denton,  14 
Eng.  L.  Eq.,  124,  per  Lord  Campbell,  C.  J. 

If  then,  a  will  legally  executed  under  a  law  of  this  state,  would 
be  avoided  by  a  subsequent  change  made  in  the  law,  before  the  tes- 
tator's death,  which  should  require  different  or  additional  formalities, 
it  would  seem  that  we  could  not  give  effect  to  one  duly  made  in  a 
foreign  state  or  country,  but  which  failed  to  conform  to  the  laws  of 
this  state,  where,  at  the  time  of  its  taking  eft'ect  by  the  testator's  death, 
he  was  no  longer  subject  to  the  foreign  law,  but  was  fully  under  the 
influence  of  our  own  legal  institutions.  The  question  in  each  rase  is, 
whether  there  has  been  an  act  done  and  perfected  under  the  law_gav- 
erning  the^tran^acLioii.  Tf  ther^-jras-  bcciT^^'ar'subsequent  change^of 
residence  would  not  impair  the  validity  of  1:he_act.  We  should  be 
bound  to  recognize  it  by  the  law  of  comity,  just  as  we  would  recognize 
and  give  validity  to  a  bond  reserving  eight  per  cent,  interest,  executed 
in  a  state  where  that  rate  is  allowed,  or  a  transfer  of  property  which 
was  required  to  be  under  seal,  but  which  had  in  fact  been  executed 
by  adding  a  scroll  to  the  signer's  name  in  a  state  where  that  stood  for 
a  seal  or  the  like.  An  act  done  in  another  state,  in  order  to  create 
rights  which  our  courts  ought  to  enforce  on  the  ground  of  comity, 
must  be  of  such  a  character  that  if  done  in  this  state,  in  conformity 
with  our  laws,  it  could  not  be  constitutionally  impaired  by  subsequent 
legislation.  An  executed  transfer  of  property,  real  or  personal,  is  a 
contract  within  the  protection  of  the  Constitution  of  the  United  States, 
and  it  creates  rights  of  property  which  our  own  Constitution  guaran- 
tees against  legislative  confiscation.  Yet,  I  presume  no  one  would 
suppose  that  a  law  prescribing  new  qualifications  to  the  right  of  de- 
vising or  bequeathing  real  or  personal  property,  or  new  regulations 
as  to  the  manner  of  doing  it,  and  making  the  law  applicable  in  terms 
to  all  cases  where  wills  had  not  already  taken  effect  by  the  death  of 
the  testator,  would  be  constitutionally  objectionable. 

I  am  of  opinion  that  a  will  has  never  been  considered,  and  that  it  is 
not  by  the  law  of  this  state,  or  the  law  of  England,  a  perfected  trans- 
action, so  as  to  create  rights  which  the  courts  can  recognize  or  en- 
force, until  it  has  become  operative  by  the  death  of  the  testator.  As 
to  all  such^actswhich  remain  thus  inchoate,  they  are  in  the  nature 
of  unex_ecuted  mtentionsT  The  author  of  them  may  chaiige_Jiis_min3, 
or  the  state  mavdetermine  thaLilis_inexpedienJLtQ-Jilklw_thgm  to  take 
effect,  and  require  them  to_be  done  Jn _  another  jTianner.  If  the  law- 
making power  may  do  this  by  an  act  operating  upon  wills  already  ex- 
ecuted, in  this  state,  it  would  seem  reasonable  that  a  general  act,  like 
the  statute  of  wills,  contained  in  the  Revised  Statutes,  would  apply 
itself  to  all  wills  thereafter  to  take  effect  by  the  death  of  the  testator 
in  this  state,  wherever  they  might  be  made;  and  that  the  law  of 
comity,  which  has  been  spoken  of,  would  not  operate  to  give  validity 


Ch.  4) 


INHERITANCE. 


633 


to  a  will  executed  in  another  state,  but  which  had  no  legal  effect  there 
until  after  the  testator,  by  coming  to  reside  here,  had -fully  subjected 
himself  to  our  laws;  nor  then,  until  his  testamentary  act  had  taken 
effect  by  his  death. 

It  may  be  that  this  conclusion  would  not,  in  all  cases,  conform  to 
the  expectations  of  testators.  It  is  quite  possible  that  a  person  coming 
here  from  another  state  who  had  executed  his  will  before  his  removal, 
according  to  the  law  of  his  former  residence,  might  rely  upon  the  va- 
lidity of  that  act,  and  would  die  intestate,  contrary  to  his  intention,  in 
consequence  of  our  laws  exacting  additional  formalities  with  which 
he  was  unacquainted.  But  it  may  be  also  that  a  well-informed  man, 
coming  here  under  the  same  circumstances,  would  omit  to  republish, 
according  to  our  laws,  his  will,  made  at  his  former  domicile,  because 
he  had  concluded  not  to  give  legal  effect  in  this  jurisdiction,  to  the 
views  as  to  the  disposition  of  his  property  which  he  entertained  when 
it  was  executed.  The  only  practical  rule  is,  that  every  one  must  be 
supposed  to  know  the  law  under  which  he  lives,  and  conform  his  acts 
to  it.  This  is  the  rule  of  law  upon  all  other  subjects,  and  I  do  not  see 
any  reason  why  it  should  not  be  in  respect  to  the  execution  of  wills. 

In  looking  for  precedents  and  juridical  opinions  upon  such  a  ques- 
tion, we  ought,  before  searching  elsewhere,  to  resort  to  those  of  the 
country  from  which  we  derive  our  legal  system,  and  to  those  furnished 
by  the  courts  and  jurists  of  our  own  country.  It  is  only  after  we 
have  exhausted  these  sources  of  instruction,  without  success,  that  we 
can  profitably  seek  for  light  in  the  works  of  the  jurists  of  the  continent 
of  Europe. 

The  principle  adopted  by  the  surrogate  is  that,  as  to  the  formal 
requirements  in  the  execution  of  a  will,  the  law  of  the  country  where 
it  was  in  fact  signed  and  attested  is  to  govern,  provided  the  testator 
was  then  domiciled  in  such  country,  though  he  may  have  afterwards 
changed  his  domicile,  and  have  been  at  his  death  a  domiciled  resident 
of  a  country  whose  laws  required  different  formalities.  Upon  an  at- 
tentive examination  of  the  cases  which  have  been  adjudged  in  the 
English  and  American  courts,  I  do  not  find  anything  to  countenance 
this  doctrine ;  but  much  authority,  of  quite  a  different  tendency.  The 
result  of  the  cases,  I  think,  is,  that  the  jurisdiction  in  which  the  in- 
strument was  signed  and  attested,  is  of  no  consequence,  but  that_Jts, 
validity  must  be  determined  according  to  the  domicile  of  thp  tpg^-atrir 
at  thfe  tmie^of  his  death.    Thus,  in  Grattan  v,  Appleton,  3  Story,  755, 


.as.  No.  5,707,  the  alleged  testamentary  papers  were  signed  in 
Boston,  where  the  assets  were,  and  the  testator  died  there,  but  he  was 
domiciled  in  the  British  province  of  New  Brunswick,  The  provincial 
statute  required  two  attesting  witnesses,  but  the  alleged  will  was  un- 
attested. The  court  declared  the  papers  invalid,  Judge  Story  stating 
the  rule  to  be  firmly  established,  that  the  law  of  the  testator's  domicile 
was  to  govern  in  relation  to  his  personal  property,  though  the  will 
might  have  been  executed  in  another  state  or  country  where  a  differ- 


63i 


PARTICULAR   SUBJECTS. 


(Part  2 


ent  rule  prevailed.  The  judge  referred,  approvingly,  to  Desesbats  v. 
Berquier,  1  Bin.  (Pa.)  336,  2  Am.  Dec.  448,  decided  as  long  ago  as 
1808.  That  was  the  case  of  a  will  executed  in  St.  Domingo  by  a  per- 
son domiciled  there,  and  sought  to  be  enforced  in  Pennsylvania,  where 
the  effects  of  the  deceased  were.  It  appeared  not  to  have  been  executed 
according  to  the  laws  of  St.  Domingo,  though  it  was  conceded  that 
it  would  have  been  a  good  will  if  executed  by  a  citizen  of  Pennsyl- 
vania. The  alleged  will  was  held  to  be  invalid.  In  the  opinion  deliver- 
ed by  Chief  Justice  Tilghman,  the  cases  in  the  English  ecclesiastical 
courts,  and  the  authorities  of  the  writers  on  the  law  of  nations,  were 
carefully  examined.  It  was  declared  to  be  settled,  that  the  succession 
to  the  personal  estate  of  an  intestate  was  to  be  regulated  according  to 
the  law  of  the  country  in  which  he  was  a  domiciliated  inhabitant  at  the 
time  of  his  death,  and  that  the  same  rule  prevailed  with  respect  to 
last  wills.  I  have  referred  to  these  cases  from  respectable  courts  in 
the  United  States,  because  their  judgments  are  more  familiar  to  the 
bar  than  the  reports  of  the  spiritual  courts  in  England.  But  these 
decisions  are  fully  sustained  by  a  series  of  well  considered  judgments 
of  these  courts.  De  Bonneval  v.  De  Bonneval,  1  Curt.  856 ;  Curling 
V,  Thornton,  2  Addams,  6 ;  Stanley  v.  Bernes,  3  Hag.  373 ;  Countess 
Ferraris  v.  Hertford,  3  Curt.  468.  It  was  for  a  time  attempted  to 
qualify  the  doctrine,  in  cases  where  the  testator  was  a  British  subject 
who  had  taken  up  his  residence  and  actual  domicile  in  a  foreign 
country,  by  the  principle  that  it  was  legally  impossible  for  one  to  ab- 
jure the  country  of  his  birth,  and  that  therefore  such  a  person  could 
not  change  his  domicile;  but  the  judgment  of  the  High  Court  of  Dele- 
gates, in  Stanley  v.  Bernes,  finally  put  the  question  at  rest.  In  that 
case  an  Englishman,  domiciled  in  Portugal  and  resident  in  the  Portu- 
guese island  of  Madeira,  made  a  will  and  four  codicils,  all  of  which 
were  executed  according  to  the  Portuguese  law,  except  the  two  last 
codicils,  and  they  were  all  executed  so  as  to  be  valid  wills  by  the  law 
of  England,  if  it  governed  the  case.  Letters  were  granted  upon  the 
will  and  two  first  codicils,  but  the  other  codicils  were  finally  pro- 
nounced against.  The  Reporter's  note  expresses  the  result  in  these 
words:  "If  a  testator  (though  a  British  subject)  be  domiciled  abroad, 
he  must  conform,  in  his  testamentary  acts  to  the  formalities  required 
by  the  lex  domicilii."  See,  also,  Somerville  v.  Somerville,  5  Ves.  750, 
and  Price  v.  Dewhurst,  8  Simmons,  279,  in  the  English  Court  of  Chan- 
cery. 

It  is  true  that  none  of  these  decisions  present  the  case  of  a  change 
of  domicile,  after  the  signing  and  attesting  of  a  will.  They  are, 
notwithstanding,  fully  in  point,  if  I  have  taken  a  correct  view  of  the 
nature  and  effect  of  a  will  during  the  lifetime  of  the  testator.  But 
the  remarks  of  judges  in  deciding  the  cases,  and  the  understanding 
of  the  Reporters  clearly  show,  that  it  is  the  domicile  of  the  testator 
at  the  time  of  his  death,  which  is  to  be  considered  in  seeking  for  the 
law  which  is  to  determine  the  validity  of  the  will.    Thus,  in  De  Bon- 


Ch.  4)  INIIERITA^•CE.  635 

neval  v.  De  Bonneval,  the  question  was  upon  the  vahclity  of  the  will 
executed  in  England,  of  a  French  nobleman  who  emigrated  in  1792, 
and  died  in  England  in  1836.  Sir  Herbert  Jenner  states  it  to  have  been 
settled  by  the  case  of  Stanley  v.  Bernes,  that  the  law  of  the  place  of 
the  domicile,  and  not  the  lex  loci  rei  sitae  governed  "the  distribution  of, 
and  succession  to,  personal  property  in  testacy  or  intestacy."  The  Re- 
porter's note  is,  that  the  validity  of  a  will  "is  to  be  determined  by  the 
law  of  the  country  where  the  deceased  was  domiciled  at  his  death." 
Nothing  is  more  clear  than  that  it  is  the  law  of  the  country  where  the 
deceased  was  domiciled  at  the  time  of  his  death,  which  is  to  regulate 
the  succession  of  his  personalty  in  the  case  of  intestacy.  Judge  Story 
says,  that  the  universal  doctrine,  recognized  by  the  common  law,  is, 
that  the  succession  to  personal  property,  ab  intestato,  is  governed 
exclusively  by  the  law  of  the  actual  domicile  of  the  intestate  at  the 
time  of  his  death.  Conf.  Laws,  §  481.  It  would  be  plainly  absurd  to 
fix  upon  any  prior  domicile  in  another  country.  The  one  which  attaches 
to  him  at  the  instant  when  the  devolution  of  property  takes  place,  is 
manifestly  the  only  one  which  can  have  anything  to  do  with  the 
question.  Sir  Richard  Pepper  Arden,  Master  of  the  Rolls,  declared, 
in  Somerville  v.  Somerville,  that  the  rule  was  that  the  succession  to 
the  personal  estate  of  an  intestate  was  to  be  regulated  by  the  law  of 
the  country  in  which  he  was  domiciled  at  the  time  of  his  death, 
without  any  regard  whatever  to  the  place  of  nativity,  or  the  place 
where  his  actual  death  happened,  or  the  local  situation  of  his  effects. 
Now,  if  the  legal  rules  which  prevail  in  the  country  where  the  de- 
ceased was  domiciled  at  his  death,  are  those  which  are  to  be  resorted 
to  in  case  of  an  intestacy,  it  would  seem  reasonable  that  the  laws  of 
the  same  country  ought  to  determine  whether  in  a  given  case  there  is 
an  intestacy  or  not,  and  such  we  have  seen  was  the  view  of  Chief  Jus- 
tice Tilghman.  Sir  Lancelot  Shadwell,  Vice  Chancellor,  in  Price 
V.  Dewhurst,  also  expressed  the  same  view.  He  said :  "I  apprehend 
that  it  is  now  clearly  established  by  a  great  variety  of  cases  which  it 
is  not  necessary  to  go  through  in  detail,  that  the  rule  of  law  is  this : 
that  when  a  person  dies  intestate,  his  personal  estate  is  to  be  adminis- 
tered according  to  the  law  of  the  country  in  which  he  was  domiciled 
at  the  time  of  his  death,  whether  he  was  a  British  subject  or  nof ;  and  ,   j)^  _yy^ 

the  question  whether  he  died  inte_stete_or_not  jiuijt  _be^  i*         lyiJU^ 

'~theT§Av~'6T'the~same  country.''.  The  method  of  arriving  at  a  determina-        cXA'"'^'^^^ 
tioh'in  the  present  case,  according  to  this  rule,  is,  to  compare  the  evi- 
dence of  the  execution  of  his  will  with  the  requirements  of  the  Re- 
vised Statutes.     Such  a  comparison  would  show  that  the  deceased  did 
not  leave  a  valid  will,  and  consequently  that  he  died  intestate. 

Being  perfectly  convinced  that  according  to  the  principles  of  the 
common  law,  touching  the  nature  of  last  wills,  and  according  to  the 
result  of  the  cases  in  England  and  in  this  country  which  have  been  re- 
ferred to,  the  will  under  consideration  cannot  be  sustained,  I  have  not 
thought  it  profitable  to  spend  time  in  collecting  the  sense  of  the  for- 


636  PARTICULAR  suBJiocTS.  (Part  2 

eign  jurists,  many  of  whose  opinions  have  been  referred  to  and  copi- 
ously extracted  in  the  able  opinion  of  the  learned  surrogate,  if  I  had 
convenient  access  to  the  necessary  books,  which  is  not  the  case.  I 
understand  it  to  be  conceded  that  there  is  a  diversity  of  opinions  upon 
the  point  under  consideration  among  these  writers ;  but  it  is  said  that 
the  authors  who  assert  the  doctrine  on  which  I  have  been  insisting, 
are  not  those  of  the  highest  character,  and  that  their  opinions  have 
been  criticised  with  success  by  M.  Felix,  himself  a  systematic  writer 
of  reputation  on  the  Conflict  of  Laws.  Judge,  Story,  however,  who 
has  wrought  in  this  mine  of  learning  with  a  degree  of  intelligence 
and  industry  which  has  excited  the  admiration  of  English  and  Amer- 
ican judges,  has  come  to  a  different  conclusion.  His  language 
is:  "But  it  may  be  asked,  what  will  be  the  effect  of  a  change  of 
domicile  after  a  will  or  testament  is  made,  of  personal  or  movable 
property,  if  it  is  valid  by  the  law  of  the  place  where  the  party  was 
domiciled  when  it  was  made,  and  not  valid  by  the  law  of  his  domicile 
at  the  time  of  his  death?  The  terms  in  which  the  general  rule  is 
laid  down  would  seem  sufficiently  to  establish  the  principle  that  in 
such  a  case  the  will  and  testament  is  void;  for  it  is  the  law  of  his 
actual  domicile  at  the  time  of  his  death,  and  not  the  law  of  his  domicile 
at  the  time  of  his  making  his  will  and  testament  of  personal  property 
which  is  to  govern."  Story,  Confl.  Laws,  §  473.  He  then  quotes  at 
length  the  language  of  John  Voet  to  the  same  general  effect.  It  must, 
however,  be  admitted  that  the  examples  put  by  that  author,  and  quoted 
by  Judge  Story,  relate  to  testamentary  capacity  as  determined  by  age, 
and  to  the  legal  ability  of  the  legatees  to  take,  and  not  to  the  form  of 
executing  the  instrument.  And  the  surrogate  has  shown,  by  an  ex- 
tract from  the  same  author,  that  a  will  executed  in  one  country  ac- 
cording to  the  solemnities  there  required,  is  not  to  be  broken  solely 
by  a  change  of  domicile  to  a  place  whose  laws  demand  other  solemni- 
ties. Of  the  other  jurists  quoted  by  the  surrogate,  several  of  them 
lay  down  rules  diametrically  opposite  to  those  which  confessedly  pre- 
vail in  this  country  and  in  England.  Thus,  Tollier,  a  writer  on  the 
civil  law  of  France,  declares  that  the  form  of  testaments  does  not  de- 
pend upon  the  law  of  the  domicile  of  the  testator,  but  upon  the  place 
where *the  instrument  is  in  fact  executed;  and  Felix,  Malin,  and 
Pothier  are  quoted  as  laying  down  the  same  principle.  But  nothing 
is  more  clear  upon  the  English  and  American  cases,  than  that  the 
place  of  executing  the  will,  if  it  is  different  from  the  testator's  domi- 
cile, has  nothing  to  do  with  determining  the  proper  form  of  executing 
and  attesting.  In  the  case  referred  to  from  Story's  Reports,  the  will 
was  executed  in  Boston,  but  was  held  to  be  invalid  because  it  was  not 
attested  as  required  by  a  provincial  statute  of  New  Brunswick,  which 
was  the  place  of  the  testator's  domicile.  If  the  present  appeal  was  to 
be  determined  according  to  the  civil  law,  I  should  desire  to  examine 
the  authorities  more  fully  than  I  have  been  able  to  do ;  but  consider- 
ing it  to  depend  upon  the  law  as  administered  in  the  English  and  Amcr- 


Ch.    4)  INHERITANCE.  637 

can  courts,  and  that  according  to  the  judgment  of  these  tribunals  it 
IS  tlie  law  of  the  domicile  of  the  testator  at  the  time  of  his  death  that 
is  to  govern,  and  not  that  of  the  place  where  the  paper  happened  to 
be  signed  and  attested,  where  that  is  different  from  his  domicile  at 
the  time  of  his  decease,  I  cannot  doubt  that  the  surrogate  and  Supreme 
Court  fell  into  an  error  in  establishing  the  will.^ 


In  re  FERGUSSON'S  WILIv. 
(Chancery  Division.  1902.    1  Ch.  Div.  483,  71  L.  J.  Ch.  360.) 

Francis  Edward  Montrion  Fergusson,  of  Calcutta,  gave  a  legacy 
to  his  niece,  Minnie  Koppe,  of  4  Alarket  street,  Hamburg,  Gerrtiany. 
The  will  provided  that  the  legacy  should  not  lapse  in  the  event  of  the 
legatee's  death  in  the  lifetime  of  the  testator,  but  should  be  divided 
among  "the  next  of  kin"  of  the  deceased  legatee,  and  in  default  of  anv 
next  of  kin  should  fall  into  the  residue  of  his  estate.  The  testator  died 
in  1898.  Minnie  Koppe  died  in  1897  in  Hamburg,  a  domiciled  German 
subject,  without  leaving  any  issue.  A  claim  to  the  legacy  was  put  for- 
ward by  the  five  children  of  her  brother,  four  nephews  and  one  niece, 
and  by  her  half-sister,  the  only  daughter  of  Minnie  Koppe's  father  by 
his  second  wife.® 

Byrne,  J.  The  question,  which  has  been  well  and  carefully  argued, 
turns  upon  the  true  meaning  to  be  placed  upon  the  gift  to  the  "next 
of  kin"  of  the  deceased  legatee  Minnie  Koppe,  a  domiciled  German 
subject,  and  arises  between  her  sister  of  the  half-blood,  and  her 
nephews  and  nieces  of  the  whole  blood.  It  appears  that  the  local 
law  of  Hamburg  did  not  recognize  brothers  and  sisters  of  the  half- 
blood  as  being  in  the  same  degree  of  relationship  with  brothers  and 
sisters  of  the  whole  blood,  or  even  with  the  more  remote  nephews  and 
nieces  of  the  whole  blood;  so  that  by  that  law  these  nephews  and 
nieces  would  take  to  the  exclusion  of  the  sister  of  the  half-blood 
(see  now  the  German  Civil  Code,  §§  1925,  1926,  which  would  seem 
to  have  the  same  effect. — F.  P.),  whereas  by  English  law  the  sister 
of  the  half-blood  would  be  entitled  to  the  exclusion  of  the  nephews 
and  nieces.  It  is  common  ground  that  this,  being  the  will  of  a  domicil- 
ed Englishman,  must  be  governed  by  the  law  of  England  so  far  as 
construction  is  concerned,  and  I  have  first  of  all  to  determine  what  is 
the  true  construction  to  be  placed  on  the  words  "to  be  divided  amongst 

7  Comstock,  C.  J.,  and  Lott,  James,  and  Hoyt,  JJ.,  concurred  in  the  above 
opinion.    Davies,  Selden,  and  ^Nlason,  JJ..  dissented. 

Accord :    In  re  Beaumont's  Estate,  216  Pa.  350,  65  Atl.  799  (1907). 

For  statutory  modification  of  the  rule,  see  2  L.  R.  A.  (N.  S.)  421^124 ;  Eng- 
lish Wills  Act  1861  (St.  24  &  25  Vict.  c.  114)  §§  1-3 ;  Dicey,  Conflict  of  Laws, 
673-678. 

8  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


6S*S^ 


"^^H 


638 


PARTICULAR   SUBJECTS. 


(Part 


the  next  of  kin  of  the  deceased  legatee."  According  to  English  law, 
there  being  no  reference  to  the  statute  of  distributions,  that  means  to 
be  divided  amongst  the  nearest  blood  relations,  in  an  ascending  and 
descending  line,  those  of  the  half-blood  being  equally  entitled  with 
those  of  the  whole  blood;  but  it  is  argued  that  I  must  stop  short  of 
that,  and  say  that  "next  of  kin"  standing  alone  means  the  nearest 
blood  relations  of  the  propositus,  and  that  I  must,  inasmuch  as  the  lega- 
tee was  a  domiciled  German,  ascertain  who  are  the  nearest  blood  rela- 
tions in  accordance  with  German  law.  In  support  of  this  proposition  the 
,/^ cases  mainly  relied  on  by  counsel  for  the  nephews  and  nieces  were 
Goodman's  Trusts,  17  Ch.  D.  266,  and  In  re  Andros,  24  Ch.  D.  637, 
cases  which  establish  that  where  there  is  a  gift  of  personalty  to  the 
"children"  of  a  named  person  who  is  a  foreigner,  not  only  those  chil- 
dren will  take  who  by  English  law  would  be  entitled  as  "children,"  but 
the  gift  must  be  construed  as  meaning  all  those  children  whose  legit- 
imacy is  established  by  the  law  of  their  parent's  domicile ;  in  other 
words,  you  construe  the  will  containing  a  gift  of  personalty  to  chil- 
dren of  a  foreigner  according  to  English  law,  but  in  ascertaining  who 
are  the  children  entitled  you  have  regard  to  the  status  of  the  parent, 
so  that  ante  nati  made  legitimate  by  the  subsequent  marriage  of  their 
parents,  in  countries  where  a  subsequent  marriage  renders  these 
children  legitimate,  are  recognized  as  legitimate  under  English  law, 
and  can  take  under  this  gift.  That  results  from  the  rules  followed 
■hy  the  comity  of  nations  which  we  call  international  law.  Now,  it 
is  said  here  that,  this  being  a  gift  in  an  English  will  to  the  next  of  kin 
of  a  German  lady,  it  is  a  question  of  status  who  are  the  next  of  kin ; 
in  my  opinion,  that  is  not  the  true  view  of  the  law.  It  appears  to  me 
I  must  construe  the  will  first,  and  I  find  the  gift  means  a  gift  to  the 
legatee's  nearest  blood  relations ;  it  may  well  be  that,  in  consequence 
of  the  legatee  being  a  German,  different  persons  may  be  entitled  from 
those  who  would  have  taken  had  she  been  an  English  woman,  as, 
for  instance,  suppose  she  had  left  children  legitimate  according  to 
German  law,  but  illegitimate  according  to  English  law,  these  chil- 
dren would  take  precedence,  and  would  thus  oust  a  sister  or  a  brother 
who  would  otherwise  have  been  the  persons  entitled  according  to 
English  law,  and  then  the  question i of  status  would  come  in;  but  that 
is  a  different  thing  from  what  Mr.  Jessel  asks  me  to  do  here,  namely, 
to  put  an  interpretation  upon  the  words  used  by  this  testator  which 
shall  entirely  exclude  the  English  construction  of  those  words.  I 
have  the  words  "next  of  kin"  in  an  English  will.  I  ask  myself,  what 
do  they  mean?  The  answer  is  they  mean  nearest  blood  relations  in 
the  ascending  and  descending  line,  including  those  of  the  half-blood, 
and  I  see  no  authority  in  any  of  the  cases  which  have  been  cited  to  me 
for  saying  that  I  ought  to  construe  these  words  as  meaning  next  of 
kin  according  to  the  German  law.  In  my  opinion,  the  next  of  kin, 
are  to  be  ascertained  according  to  English  law,  subject,  as  I  have  al- 
ready indicated,  to  the  question  of  status,  should  any  question  of  that 


Ch.  4)  iXHEraTANCE.  639 

kind  arise.  The  result  in  the  present  case  is,  that  I  hold  that  the 
sister  of  the  half-blood  is  entitled  to  this  legacy  to  the  exclusion  of 
the  nephews  and  nieces.® 


STAIGG  V.  ATKINSON. 

(Supreme  Judicial  Court  of  Massachusetts,  1887.    144  Mass.  .'G4,  12  N.  E.  354.) 

Holmes,  J.^°    This  is  an  action  brought  by  a  widow  to  recover  one- 
third  of  the  proceeds  of  land  in  j\Iinnesota,  formerly  belonging  to  her 
husband,  and  sold  without  prejudice.    The  defense  is  that  she  is  barred 
by  having  accepted  the  provisions  of  her  husband's  will.    The  husband 
made  a  will  while  domiciled  in  Rhode  Island,  providing  for  the  plain- 
tiff, but  not  declaring  the  provision  to  be  in  lieu  of  dower,  and  then 
changed  his  domicile  to  Massachusetts,  where  he  died.    If  he  had  died_ 
domiciled  in  Rhod^  Island,  and  the  land  had  been  situated,  there^ the_ 
provisions  of  the  will  wouldjiothave  prevented  the  plaintiff  from  re- 
covering_dower ;   and  it  lias^been  decfded,  in~ a  case  between  tTie~]samF 
parties,  that ^hechano-e  of  domicile  did  not  affectrherxi^ht  in  Rhode 
Island  landT  Atkinson  v.  Staigg,  TS"£C.h725.'  If  he  had  been  domP 
ciled  and  had  made  his  will  in  Minnesota,  the  plaintiff  would  have 
been  entitled  by  statute  to  the  one-tliird  jwhich  she  claims ;    and,  as 
there  is  no  statute  to  the  contrary,  the  provisions  of  the  will  would. 


not  have  put  her  to  an  elecdoa.  Gen.  Laws  Minn.  1875,  c.  40;  In 
re  Gotzian,  34  Mmn.  159,  163,  164,  24  N.  W.  920,  57  Am  Rep.  43 : 
Reed  v.  Dickerman,  12  Pick.  146,  149;  Ellis  v.  Lewis,  3  Hare,  310. 
If,  finally,  the  land  had  been  situated  in  Massachusetts,  and  the  will 
executedjthere,  the  plaintiff  would  have  been  compelled  to  elect  be- 

9 Accord:    In  re  Riesenbers's  Estate,  90  S.  W.  1170  (1905).  ^      «      ^.4>*-*^ 

Tlie  law  of  the  last  domicile  of  the  testator  will  govern  the  interpretation  of?  (li^  *\  C-'*^^ 
a  will  of  personal  property,  unless  the  testator  had  in  mind  the  law  of  another  J 
state.  Harrison  v.  Nixon,  9  Pet.  483,  9  L.  Ed.  201  (1835).  See,  also,  Caulfiphr 
V.  Sullivan,  85  N.  Y.  153  (1881).  But  it  has  been  said  that,  where  the  domicile 
has  been  changed  since  the  making  of  the  will,  the  law  of  the  domicile  at  the 
time  of  its  execution  should  govern  the  interpretation  of  the  will.  Atkinson 
V.  Staigg.  13  R.  I.  725  (1882),  semble;  Holmes  v.  Holmes,  1  Russ.  &  M.  660 
(1830).  See,  also,  English  Wills  Act,  1861  (St.  24  &  25  Yict.  c.  114)  §  3. 
The  law  of  the  last  domicile  will  determine,  also,  in  general,  the  effect  and 
operation  of  the  will  of  personal  property — e.  g.  whether  a  bequest  is  ab- 
solute or  upon  trust.  McCurdy  v.  McCallum,  186  Mass.  464,  72  N.  E.  75 
(1904).  So  whether  an  active  or  passive  trust  has  been  created.  Rosenbaum 
V.  Garrett,  57  N.  J.  Eq.  186,  41  Atl.  252  (1898).  So  whether  a  legacy  will 
lapse  by  reason  of  the  prior  death  of  the  legatee.  Anstruther  v.  Chalmer.  2 
Sim.  1  (1825) ;  Lowndes  v.  Cooch,  87  Md.  478,  39  Atl.  1045.  40  L.  R.  A.  380  (1898). 
So  whether  the  personalty  has  been  equitably  converted  into  realty.  Mc- 
Pherson  v.  Stewart,  28  L.  J.  Ch.  177  (1858).  So  as  to  what  will  pass  under 
the  term  "movables."  Enohin  v.  Wylie,  10  H.  L.  Cas.  1  (1862).  Or  under 
the  residuary  clause  of  a  will.  Proctor  v.  Clark,  154  Mass.  45,  27  N,  E.  673, 
12  L.  R.  A.  721  (1891). 

10  The  statement  of  facts  has  been  omitted. 


640 


PARTICULAR  SUBJECTS. 


(Part  2 


tween  Jier-dowe^ 


Pub.  St.  c.  127,  §  20;    St.  18G1,  c. 


164,  §  1.    So  far  there  is  no  dispute  between  the  parties. 

On  the  foregoing  statement,  it  is  obvious  that  the  defendant  cannot 
prevail,  unless  the  rule  which  would  govern  if  the  land  lay  here  also 
governs  the  present  case.  It  is  contended  that  that  rule  does  govern, 
on  the  ground  that  the  Massachusetts  statute  is  a  statute  of  construc- 
tion, reading  a  clause  of  universal  application  into  the  will,  to  the 
effect  that  the  provision  made  for  the  widow  is  in  lieu  of  dower,  or 
substituted  statutory  interests  in  all  lands,  wherever  situated ;  that 
the  will  is  to  be  construed  by  the  law  of  the  domicile  of  the  testator 
at  the  time  of  his  death,  and  that  if  the  will,  so  construed,  makes  an  ac- 
ceptance of  its  provisions  a  waiver  of  dower,  etc.,  the  law  of  Minnesota 
would  enforce  the  election  made  by  such  acceptance.  Washburn  v. 
Van  Steenwyk,  32  Minn.  336,  20  N.  W.  324. 

But  we  cannot  admit  that  a  rule  of  construction,  properly  so  called, 
not  known  to  the  law  of  the  party's  domicile  when  he  made  his  will, 
is  necessarily  to  be  imported  into  it  by  reason  of  his  dying  domiciled 
elsewhere.  For  purposes  of  construction  it  is  always  legitimate  to 
consider  the  time  when  and  the  circumstances  in  which  the  will  was 
made,  and  we  think  the  law  under  which  it  was  made  was  one  of  those 
circumstances.  We  are  speaking  only  with  reference  to  a  case  like 
the  one  before  us,  not  to  a  question  like  that  in  Harrison  v.  Nixon, 
9  Pet.  483,  504,  9  L.  Ed.  201.  The  testator  was  at  liberty  to  make 
his  gift  to  his  wife  in  lieu  of  or  in  addition  to  dower,  as  he  saw  fit. 
Which  it  should  be,  he  had  to  consider,  if  he  ever  considered  it, 
when  he  drew  his  will.  He  drew  his  will  under  a  system  by  which  the 
gift  was  in  additionto  dowePliiiless  lie^xpressed  the  contrary,  and  he 
did  not  express  the  contrary, .  We  _are_at  a  loss^  to  see  why  hii^wor^s 
should  be  held  to  acquire  a  new  meaning  upon  his  moving  into~a_staJe 
where  testamentary  gifts  are  in  lieu  of-dQwer-unless  shown  to l)e  in  ad- 
dition"~To  it.  Atkinson  v.  Staigg,  ubi  supra;  Holmes  v.  Holmes,  1 
uss.  &  M.  660. 

In  view  of  our  construction  of  the  Massachusetts  statute,  it  is  not 
necessary  to  consider  what  was  the  effect  of  moving  into  Massachu- 
setts with  regard  to  Massachusetts  land.  The  plaintiff  has  never  made 
any  claim  upon  it.  See  Shannon  v.  White,  109  Mass.  146.  Neither 
need  we  pass  upon  the  plaintiff's  argument  that  the  general  laws  of 
Minnesota  should  be  accepted  here  as  determining  the  construction  of 
the  will,  so  far  as  concerns  the  effect  of  accepting  its  provisions  upon 
the  plaintiff's  right  to  Minnesota  land.  It  would  follow  from  that 
argument  that  the  plaintiff  would  have  been  barred  of  her  dower  in 
the  Massachusetts  land  even  if  the  testator  had  not  moved  from  Rhode 
Island. 

The  case  of  Jennings  v.  Jennings,  21  Ohio  St.  56,  relied  on  by  both 
sides,  was  the  case  of  a  West  Virginia  will  giving  the  wife  certain  in- 
terests in  land  in  Ohio,  and  it  was  intimated  that  with  regard  to  Ohio 
lands  she  was  put  to  her  election  between  the  will  and  her  dower, 


Ch.    4)  INPIERITANCE.  641 

although  West  A^Irginia  preserved  the  common-law  rule  allowing  her 
to  claim  dower  in  addition  to  what  was  given  by  the  will.  We  under- 
stand this  case  to  go  on  the  ground  that  the  law  of  the  place  of  the 
land  given  to  the  widow  by  the  will  was  to  determine  whether  she 
was  put  to  an  election  or  not,  at  least  with  regard  to  land  in  the  same 
jurisdiction,  claimed  outside  the  will.  Thus  construed,  the  case  helps 
neither  party.  The  case  of  Washburn  v.  Van  Steenwyk,  32  Minn. 
336,  20  N.  W.  324,  which  was  put  in  evidence,  is  opposed  to  the  plain- 
tiff's contention.  See  Van  Steenwyck  v.  Washburn,  59  Wis.  483,  510, 
17  N.  W.  289,  48  Am.  Rep.  532. 

But  we  need  not  pursue  this  branch  of  the  case  further,  because, 
in  our  opinion,  the  Massachusetts  statute  does  not  purport  to  affect 
lands  outside  of  the  state  either  by  way  of  construction  or  otherwise. 
The  language  of  Pub.  St.  c.  127,  §  20,  is  as  follows :  "A  widow  shall 
not  be  entitled  to  her  dower  in  addition  to  the  provisions  of  her  de- 
ceased husband's  will,  unless  such  plainly  appears  by  the  will  to  have 
been  the  intention  of  the  testator."  In  St.  1861,  c.  164,  §  1,  the  lan- 
guage is :  "If  she  makes  no  such  waiver,  she  shall  not  be  endowed  of  his 
lands,  unless  it  plainly  appears  by  the  will  to  have  been  the  intention  of 
the  testator  that  she  should  have  such  provisions  in  addition  to  her 
dower."  Both  of  these  acts  in  form  are  directed  at  dower,  not  at  the 
construction-  of  wills.  The  statutes  give  the  widow  dower  (Pub.  St.  c. 
124,  §  3 ;  Rev.  St.  c.  60,  §  1),  and  allow  her  six  months  in  which  to 
waive  the  provisions  made  for  her  by  will  (Pub.  St.  c.  127,  §  18;  St. 
1861,  c.  164,  §  1 ;  Rev.  St.  c.  60,  §  11).  They  then  go  on  to  say  that  she 
cannot  have  her  dower  unless  she  waives  the  will,  but  add  that  the  hus- 
band may  make  his  bounty  an  addition  to  her  dower  if  he  sees  fit. 
No  doubt  the  statute  was  intended  to  change  the  common-law  rule. 
But  the  fact  that  it  approaches  the  subject  from  the  side  of  dower, 
and  not  from  the  side  of  the  will,  shows  that  it  was  only  intended  to 
operate  with  regard  to  Massachusetts  lands,  whether  described  as  a 
statute  of  construction  or  as  a  statute  relating  to  dower.  Of  course, 
^Massachusetts  would  not  attempt  to  legislate  concerning  dower  in 
another  state.  Taking  the  view  which  we  have  expressed,  we  have 
not  considered  whether  the  statutory  one-third  in  fee  given  by  the 
law  of  Minnesota  would  be  included  under  the  word  "dower"  in  our 
statute. 

It  was  suggested  for  the  defendant  that  the  widow  could  not  claim 
under  the  will  in  one  jurisdiction,  and  against  it  in  another.  But,  on 
our  construction  of  the  will  and  the  Massachusetts  statute,  she  does 
not  claim  against  the  will  by  claiming  her  third  of  the  Minnesota  land 
outside  of  it. 

We  are  of  opinion  that  the  plaintiff's  interest  is  bound  to  contribute 
to  the  payment  of  debts  secured  by  mortgage  upon  the  Massachusetts 
lands.  By  the  old  law,  until  changed  in  England  by  St.  17  &  18  Vict, 
c.  113,  if  other  land  was  charged  with  the  payment  of  debts,  it  had 
to  exonerate  land  which  the  testator  had  mortgaged.     And  this  rule 

LOR.CONF.L. — 41 


/ 


.642  PARTICULAR  SUBJECTS.  (Part  2 

was  not  based  upon  the  fact  that  the  devise  of  the  mortgaged  land 
was  specific,  as  it  would  have  been  even  if  residuary,  or  upon  any  no- 
tion of  the  intention  to  be  drawn  from  the  will.  Undoubtedly,  land 
not  passing  by  the  will,  but  acquired  and  mortgaged  after  the  will 
was  drawn,  would  have  been  exonerated.  The  rule  was  put  upon  the 
ground  that  the  debt  was  a  general  debt,  like  any  other,  and  the  mort- 
gaged land  only  a  security,  and  therefore  that  the  funds  liable  for  gen- 
eral debts  must  pay  it.  Bartholomew  v.  May,  1  Atk.  487 ;  Tweedale  v. 
Coventry,  1  Brown,  Ch.  240;  Serle  v.  St.  Eloy,  3  P.  Wms.  386; 
Hewes  v.  Dehon,  3  Gray,  205,  207;  Plimpton  v.  Fuller,  11  Allen,  139. 
It  followed  that,  when  other  land  and  the  mortgaged  land  were  both 
charged  together,  they  were  held  to  contribute  ratably  (Carter  v: 
Barnadiston,  1  P.  Wms.  505;  Middleton  v.  Middleton,  15  Beav.  450; 
Harper  v.  Munday,  7  De  Gex,  M.  &  G.  369);  and  the  same  principle 
would  apply  when  all  the  lands  are  charged  by  statute,  instead  of  by 
will. 

By  the  Minnesota  statute,  the  plaintiff's  interest  is  "subject,  in  its 
just  proportion,  with  the  other  real  estate,  to  the  payment  of  such 
debts  of  the  deceased  as  are  not  paid  from  the  personal  estate" ;  so 
that,  apart  from  the  will,  the  plaintiff's  one-third  would  stand  no  better 
than  the  other  two-thirds.  Taking  into  account  this  and  the  general 
course  of  legislation  which  makes  land  liable  for  debts,  we  think  that 
it  would  be  too  artificial  to  interpret  the  testator's  general  direction  to 
pay  debts  as  indicating  an  intent  to  charge  the  interests  passing  by  the 
will  in  exoneration  of  the  plaintiff's  one-third,  even  as  against  residu- 
ary devisees.  Hewes  v.  Dehon,  ubi  supra.  See  Harris  v.  Watkins, 
Kay,  438.  Although  we  assume  that  the  residuary  devise  was  not 
specific,  so  far  as  it  aft'ected  the  Minnesota  land,  as  it  was  not  with 
regard  to  the  land  in  Massachusetts  (Blaney  v.  Blaney,  1  Cush.  107; 
Thayer  v.  Wellington,  9  Allen,  283,  296,  85  Am.  Dec.  753),  the  plain- 
tiff prevails  upon  a  somewhat  technical  principle,  and  hardly  can  com- 
plain if  she  is  held  to  stand  upon  the  footing  on  which  the  Minnesota 
statute  meant  to  put  her. 

Judgment  for  plaintiff  for  $2,205.69.^1 


PEET  v.  PEET. 

(Supreme  Court  of  Illinois,  1907.    229  111.  341,  82  N.  E.  376,  13  L.  R.  A.  [N.  S.] 

780.) 

ViCKERS,  J."  Section  10  of  chapter  39,  Hurd's  Rev.  St.  1905,  pro- 
vides as  follows :   "If,  after  making  a  last  will  and  testament,  a  child 

11  In  favor  of  the  lex  domicilii  of  the  testator,  see,  also,  Boiling  v.  Boiling, 
88  Va.  524,  14  S.  E.  67  (1891). 

12  The  statement  of  facts  has  been  omitted.  Only  so  much  of  the  opinion 
Is  given  as  relates  to  the  discussion  of  the  law  governing  the  construction  of 
the  will.     Cartvvright,  Farmer,  and  Dunn,  JJ.,  dissented. 


Ch.    4)  INHERITANCE.  643 

shall  be  born  to  any  testator,  and  no  provision  be  made  in  such  will 
for  such  child,  the  will  shall  not  on  that  account  be  revoked ;  but 
unless  it  shall  appear  by  such  will  that  it  was  the  intention  of  the  tes- 
tator to  disinherit  such  child,  the  devises  and  legacies  by  such  will 
granted  and  given,  shall  be  abated  in  equal  proportions  to  raise  a  por- 
tion for  such  child  equal  to  that  which  such  child  would  have  been 
entitled  to  receive  out  of  the  estate  of  such  testator  if  he  had  died  in- 
testate, and  a  marriage  shall  be  deemed  a  revocation  of  a  prior  w^U." 

The  sole  question  for  determination  in  this  case  is  whether  the  de- 
vise under  the  will  should  be  abated  to  raise  a  portion  for  appellant 
equal  to  that  which  he  would  have  been  entitled  to  receive  had  the  tes- 
tator died  intestate.  Appellant's  contention  may  be  reduced  to  two 
principal  propositions :  First,  whether  the  testator  intended  by  his 
will  to  disinherit  his  after-born  child  must  be  determined  by  the  laws 
of  the  state  of  New  York,  where  the  testator  was  domiciled ;  second,  un- 
der section  10  t)f  chapter  39  of  our  statutes,  above  set  out,  no  evidence 
outside  of  the  will  itself  is  admissible,  and  under  said  section  and  the 
words  of  the  will  appellant  is  entitled  to  a  one-fourth  interest  in  the 
real  estate  involved.  If  either  of  the  foregoing  propositions  is  sus- 
tained, then  that  the  decree  below  is  erroneous  would  seem  to  follow 
as  a  necessary  conclusion.  We  will  consider  these  two  propositions 
in  the  orcjer  in  which  they  are  stated. 

First.  Appellant  concedes  that  the  devolution  of  real  property  is 
governed  by  the  law  of  the  place  where  the  real  estate  is  situated,  but 
he  insists  that  in  determining  the  testator's  intention  the  law  of  New 
York  must  govern.  To  say  that  the  intention  of  the  testator  must  be 
determined  under  the  laws  of  his  domicile  is  equivalent  to  saying  that 
the  construction  of  a  will  is  governed  by  the  laws  of  the  testator's 
domicile.  There  is  no  perceivable  difference  between  the  construction 
of  a  will  and  determining  the  intention  of  the  testator,  unless  it  may 
be  said  that  ascertaining  the  intention  of  the  testator  is  the  object  to 
be  sought,  and  construction  is  the  means  of  attaining  that  object. 
Whatever  may  be  the  rule  with  respect  to  movable  property,  we  regard 
the  law  as  firmly  established  in  this  state  that  all  instruments  affecting 
the  title  of  real  estate  situated  in  this  state  must  be  governed,  as  to  their 
execution,  construction,  and  legal  sufficiency,  exclusively  by  the  laws 
of  Illinois,  and  not  by  the  laws  of  a  foreign  country  or  sister  state 
wherein  the  maker  may  reside  at  the  time  of  their  execution. 

In  Redfield  on  Wills  (volume  1,  p.  398),  it  is  said:  "It  is  scarcely 
necessary  to  state  that  in  regard  to  real  property  the  mode  of  execu- 
tion, the  construction,  and  the  validity  of  a  will  must  be  governed  ex- 
clusively by  the  lex  rei  sitse.  The  descent  of  real  estate,  as  well  as 
the  devise  of  it,  is  governed  exclusively  by  the  law  of  the  place  where 
the  property  is  situated.  It  would  not  comport  with  the  dignity,  the 
independence,  or  the  security  of  any  independent  state  or  nation  that 
these  incidents  should  be  liable  to  be  aft'ected,  in  any  manner,  by  the 
legislation  or  the  decisions  of  the  courts  of  any  state  or  nation  besides 


G44  PARTICULAR  SUBJECTS.  (Part  3 

itself.  This  has  been  a  universally  recognized  rule  of  the  English  law 
from  the  earliest  time,  and  is  so  unquestionable  that  we  should  scarce- 
ly feel  justified  in  occupying  much  space  in  reviewing  the  cases." 
In  City  Ins.  Co,  v.  Commercial  Bank,  68  111.  348,  this  court,  on  page 
353,  said:  "Mr.  Story  concedes  that  the  courts  of  England  and  the 
United  States  have  arrived  at  opposite  conclusions  as  to  the  effect 
of  statutable  transfers  of  movable  property  under  the  bankrupt  or  in- 
solvent laws  of  the  debtor's  domicile,  but  he  adds :  'All  the  authori- 
ties in  both  countries,  so  far  as  they  go,  recognize  the  principle, 
to  its  fullest  extent,  that  real  estate  or  immovable  property  is  ex- 
clusively subject  to  the  laws  of  the  government  within  whose  terri- 
tory it  is  situated.  Indeed,  so  firmly  is  this  principle  established 
that  in  cases  of  bankruptcy  the  real  estate  of  the  bankrupt  situated 
in  foreign  countries  is  universally  admitted  not  to  pass  under  the 
assignment,  although,  as  we  have  seen,  there  is  great  diversity  of 
opinion  as  to  movables.'  Story  on  Conflict  of  Laws,*  §  428."  See, 
also.  West  v.  Fitz,  109  111.  425.  In  Wunderle  v.  Wunderle,  144  111. 
40,  33  N.  E.  195,  19  L.  R.  A.  84,  this  court,  on  page  53  of  144  111., 
page  197  of  33  N.  E.  (19  L.  R.  A.  84),  said :  "It  is  a  general  rule  of 
the  common  law  that  the  title  to  real  property  must  be  acquired  and 
passed  according  to  the  lex  rei  sitae.  This  rule  not  only  applies  to 
alienations  and  acquisitions  made  by  the  acts  of  the  parties,  but  also 
to  estates  and  rights  acquired  by  operation  of  law.  The  descent  and 
heirship  of  real  estate  are  governed  by  the  law  of  the  country  where 
it  is  located.  Story  on  Conflict  of  Laws,  §§  424,  448,  483,  509 ;  Stoltz 
V.  Doering,  112  111.  234.  This  principle,  originally  applicable  as  be- 
tween countries  entirely  foreign  to  each  other,  also  prevails  as  among 
the  states  of  the  American  Union."  In  Harrison  v.  Weatherby,  180 
111.  418,  54  N.  E.  237,  this  court  had  before  it  a  will  executed  in  the 
state  of  North  Carolina  by  Richard  Smith.  There  were  no  witnesses 
to  the  will,  and  apparently  the  laws  of  North  Carolina  recognized  the 
vahdity  of  holographic  wills  without  attestation.  The  will,  on  its 
face,  showed  that  it  had  been  written  by  the  testator  in  person,  and 
attestation  by  witnesses  was  dispensed  with  because  the  law  of  that 
state  recognized  the  validity  of  a  will  proven  to  be  in  the  handwriting 
of  the  testator.  The  will  affected  the  title  to  a  large  body  of  real 
estate  in  Illinois.  In  the  course  of  the  opinion  in  that  case,  on  page  435 
of  180  111.,  page  239  of  54  N.  E.,  the  following  rule  was  laid  down  by 
this  court :  "The  validity  and  construction,  as  well  as  the  force  and 
effect,  of  all  instruments  affecting  the  title  to  land,  depend  upon  the 
law  of  the  state  where  the  land  is  situated.  This  rule  includes  wills, 
as  well  as  deeds,  contracts,  or  agreements;  and  it  includes  the  form 
and  mode  of  the  execution  of  the  will  as  well  as  the  power  of  the  tes- 
tator to  make  the  devise  or  disposition  of  property  contained  in  the 
will.  West  V.  Fitz,  109  111.  425 ;  McCartney  v.  Osburn,  118  111.  403, 
9  N.  E.  210 ;  City  Ins.  Co.  of  Providence  v.  Commercial  Bank  of  Bris- 
tol, 68  111.  348;    Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  195, 


Ch.    4)  INHERITANCE.  645 

19  L.  R.  A.  84 ;  Ford  v.  Ford,  70  Wis.  44,  33  N.  W.  188,  5  Am.  St. 
Rep.  117;  Robertson  v.  Pickrell,  109  U.  S.  608,  3  Sup.  Ct.  407,  27  L. 
Ed.  1049;  McCormick  v.  Sullivant,  10  Wheat.  192,  6  L.  Ed.  300; 
Darby  v.  Mayer,  10  Wheat.  4G5,  6  L.  Ed.  3G7."  It  will  be  noted  that 
in  the  cases  above  cited  the  construction  of  instruments  affecting  real 
estate,  as  well  as  their  force  and  validity,  is  governed  exclusively  by 
the  lex  rei  sitae.  Judicial  construction  is  the  process  of  applying  nat- 
ural methods  of  finding  and  weighing  evidence  to  discover  the  fact 
of  intention.  To  say  that  the  intention  of  a  maker  of  an  instrument 
is  to  be  determined  by  one  law  or  set  of  rules,  and  that  its  construc- 
tion is  to  be  by  another  and  different  law  or  set  of  rules,  is  contradict- 
ory and  absurd. 

The  only  authorities  in  this  state  that  appellant  cites  in  support  of 
his  contention  are  Carpenter  v.  Brownirrg,  98  111.  282,  and  Freund  v. 
Freund,  218  111.  189,  75  N.  E.  925,  109  Am.  St.  Rep.  283.  Neither 
of  these  cases  is  in  point.  In  the  Browning  Case  the  question  present- 
ed was  as  to  the  effect  of  the  married  woman's  act  of  1861  upon  a  de- 
vise in  trust  for  the  use  of  a  married  woman,  made  prior  to  the  act  of 
1861.  In  that  case,  after  the  act  of  1861  was  passed,  the  usee  sought 
to  compel  the  execution  of  the  trust  by  compelling  a  conveyance  to  be 
made  by  the  trustee  to  the  beneficiary.  It  was  held  that  the  married 
woman's  act  of  1861  did  not  execute  the  trust  nor  entitle  the  beneficia- 
ry to  a  conveyance  where  the  will  imposed  active  duties  on  the  trustee. 
In  disposing  of  that  case  the  court  held  that  the  state  of  the  law  at  the 
time  of  the  execution  of  the  will  might  be  referred  to  for  the  purpose 
of  arriving  at  the  intention  of  the  testator,  and  that  the  rights  of  the 
parties  were  to  be  determined  under  the  law  as  it  existed  at  the  time- 
of  the  testator's  death.  The  case  lends  no  support  to  appellant's  con- 
tention that  a  law  of  a  foreign  country  or  sister  state  should  govern 
this  court  in  the  construction  to  be  given  to  the  will  now  under 
consideration.  Freund  v.  Freund  involved  the  right  pi  the  insur- 
ed, under  a  New  York  life  insurance  policy,  to  change  the  bene- 
ficiary without  the  consent  of  the  company  properly  indorsed  on  the 
policy.  Under  the  statute  of  New  York  a  beneficiary  could  not  be 
changed  except  by  written  indorsement  upon  the  policy  by  the  com- 
pany. It  was  held  that  the  assured  was  bound  by  the  statute  of  New 
York.  That  case  has  no  application  whatever  to  the  facts  of  the  case 
in  hand.  The  case  does  not  relate  to  real  estate  or  other  property 
located  in  this  state.  The  contract  of  insurance  was  executed  in  the 
state  of  New  York,  and,  so  far  as  the  case  shows,  was  to  be  wholly 
performed  there,  and,  of  course,  was  made  and  accepted  in  view  of 
the  statute  relating  to  a  change  of  beneficiaries. 

The  authorities  relied  on  by  appellant  outside  this  state,  so  far  as 
we  have  been  able  to  examine  them,  seem  to  be  referable  rather  to  the 
doctrine,  recognized  in  this  state  as  well  as  in  those  jurisdictions  where- 
in the  cases  are  found,  that  in  determining  the  true  intent  and  mean- 
ing of  a  will  the  court  will  have  recourse  to  the  circumstances  of  the 


G46  ^  PARTICULAR  SUBJECTS.  (Part  2 

testator  and  of  his  family  and  affairs,  and  of  other  facts  which  it  can 
be  shown  will  in  any  way  aid  the  court  in  the  right  interpretation 
of  a  testator's  will.  Proposition  5  of  Wigram's  Rules,  p.  142,  Wig- 
ram  on  Wills.  Under  this  rule  we  have  no  doubt  that  if  a  will  execut- 
ed in  a  foreign  country  contains  words  or  phrases  which  have  a  local 
or  domiciliary  meaning  different  from  the  meaning  of  the  same  words 
or  phrases  in  this  state,  with  which  the  testator  is  shown  or  presumed 
to  have  been  acquainted,  extrinsic  evidence  of  such  domiciliary  mean- 
ing may  be  heard  to  enable  the  court  to  read  the  will  with  the  same 
light  under  which  it  was  written.  In  this  view  it  can  make  no  differ- 
ence how  such  domiciliary  meaning  was  established.  It  may  be  by 
the  usage  or  custom  of  merchants  or  traders  in  the  place  where  the 
instrument  was  executed,  or  may  be  a  meaning  established  by  statute 
or  judicial  decision.  But,  however  established,  the  usage  or  law,  and 
the  meaning  of  the  words  thereunder,  are  proven,  not  to  establish  a 
rule  of  law  binding  on  the  court  charged  with  the  proper  interpreta- 
tion of  the  will,  but  simply  as  a  fact  or  circumstance  proven  to  enable 
the  court  to  arrive  at  a  correct  construction  under  the  laws  of  the 
forum. 

It  is  a  well-established  rule  that  parol  evidence  may  be  received 
of  a  usage  or  custom  to  explain  the  meaning  of  terms  used  in  a 
written  contract  that  would  otherwise  be  ambiguous.  Indeed,  under 
the  more  recent  authorities  the  rule  seems  to  be  established  that  such 
evidence  is  admissible  to  explain  the  meaning  of,  but  not  to  contra- 
dict, the  instrument,  even  though  no  ambiguity  exists  on  the  face  of 
the  instrument.  1  Elliott  on  Evidence,  §  607,  and  cases  there  cited. 
,  See,  also,  2  Page  on  Contracts,  §  1108,  and  citations  there  made. 
As  applied  to  the  construction  of  instruments  affecting  the  title  to 
real  estate,  the  above  rule '  furnishes  the  only  ground  upon  which  a 
court  of  this  state  is  warranted  in  hearing  evidence  as  to  the  law  of 
the  state  or  government  of  the  maker's  domicile,  and  when,  under  these 
limitations  and  restrictions,  it  is  heard,  it  is  only  to  be  considered  as 
an  extrinsic  fact  brought  forward  by  extrinsic  evidence  to  enable  the 
court  to  properly  interpret  the  true  intention  of  the  testator.  While 
the  language  selected  by  courts  and  law  writers  in  applying  this  rule 
has  not  always  been  entirely  clear,  yet,  when  the  authorities  are  care- 
fully considered  and  analyzed  in  the  light  of  the  facts  involved,  we  do 
not  believe  a  well-considered  case  can  be  found  which  holds  that  the  law 
of  the  domicile  of  the  maker  of  an  instrument  affecting  the  title  of 
real  estate,  respecting  the  construction  thereof,  is  binding  on  a  court 
where  the  real  estate  is  situated,  when  called  on  to  construe  and  en- 
force such  instrument.  Our  conclusion  as  to  appellant's  first  proposi- 
tion is  that  it  cannot  be  sustained,  and  that  the  will  is  to  be  construed — ■ 
that  is,  the  intention  of  the  testator  must  be  determined — by  the  law 
of  this  state.     *     *     *i3 

13  See,  also,  Minor,  Conflict  of  Laws.  §  145;  Crawforrl  D.  Hening,  Construe 
lion  of  Wills  Devising  Real  Estate.    50  Am.  L.  Reg.  623-638,  718-733. 


Ch.    4)  INHERITANCE.  64:7 

WESTERMAN  v.  SCHWAB. 

(Court  of  Session,  1905.    8  Sess.  Cas.  [5th  Series]  132.) 

This  was  an  action  of  multiple  poinding  raised  in  the  Sheriff  Court 
at  Aberdeen  at  the  instance  of  Thomas  Collette  Westerman,  executor 
dative  of  the  deceased  Mrs.  Sarah  Ann  Scott  or  Westerman,  wife  of 
the  deceased  Edward  Westerman,  soap  manufacturer,  Aberdeen. 

On  4th  June,  1897,  Mrs., Westerman,  then  Miss  Scott,  executed  a 
will  in  English  form  disposing  of  her  whole  estate.  At  that  date  and 
down  to  the  date  of  her  marriage  with  Mr.  Westerman  she  was  domi- 
ciled in  England.  Some  years  after  the  execution  of  the  will  she  was 
married  in  England  to  Mr.  Westerman,  who  was  then,  and  continued 
to  be  till  his  death,  domiciled  in  Scotland. 

Mrs.  Westerman  died  at  Aberdeen  on  25th  March,  1904,  survived 
by  her  husband,  who  died  on  37th  April,  1904,  without  having  expede 
confirmation  of  her  estate.  The  pursuer,  who  was  a  son  of  Mr. 
Westerman  by  a  prior  marriage,  gave  up  an  inventory  of  the  estate 
of  Mrs.  Westerman,  and  was  duly  confirmed  executor  dative  to  her 
qua  representative  of  her  husband.  The  estate  left  by  Mrs.  Wester- 
man consisted  of  movable  estate. 

One  half  of  the  free  residue  of  the  estate  was  paid  by  the  executor 
to  the  representatives  of  Mrs.  Westerman's  husband  in  respect  of  jus 
relicti.  The  other  half  of  the  free  residue  formed  the  fund  in  medio 
in  this  action. 

A  claim  was  lodged  by  Frederick  L,.  P.  Schwab  and  others,  the 
executor  and  legatees  under  Mrs.  Westerman's  will.  They  claimed* 
the  whole  fund  in  medio  in  virtue  of  the  will. 

A  claim  was  also  lodged  by  George  Worth  and  others,  Mrs.  Wester- 
man's next  of  kin.  These  claimants  averred  that  the  will  executed  by 
Mrs.  Westerman  on  4th  June,  1897,  was,  according  to  the  law  of  Eng- 
land, revoked  by  her  subsequent  marriage.  [The  Wills  Act,  1837 
(1  Vict.  c.  26),  enacts  as  follows:  "Sec.  18.  And  be  it  further 
enacted  that  every  will  made  by  a  man  or  woman  shall  be  revoked  by 
his,  or  her  marriage.  *  *  *  ggc.  35.  And  be  it  further  enacted 
that  this  act  shall  not  extend  to  Scotland."]  And  that  she  executed  no 
will  subsequent  to  her  marriage. 

The  claimants  Schwab  and  others  pleaded:  (2)  Mrs.  Sarah  Ann 
Scott  or  Westerman  becoming  by  her  marriage  a  Scotswoman,  her 
will  was  not  revoked  by  her  marriage,  but  remained  valid  and  effectual. 

The  claimants  Worth  and  others  pleaded:  (1)  The  will  founded 
on  having  been,  executed  before  the  marriage  of  the  said  Sarah  Ann 
Scott  or  Westerman,  who  continued  domiciled  in  England  down  to 
the  date  of  her  marriage,  was  by  her  marriage  revoked. 

By  an  interlocutor,  dated  28th  December,  1904,  the  sheriff  substi- 
tute (Robertson)  found  that  the  will  executed  by  Mrs.  Westerman  on 
4th  June,  1897,  remained  valid  and  eff'ectual  notwithstanding  her  sub- 


648  PARTICULAR  SUBJECTS.  (Part  2 

sequent  marriage,  and  therefore  ranked  and  preferred  the  claimants 
Schwab  and  others  in  terms  of  their  claim. 

The  claimants  Worth  and  others  appealed  to  the  sheriff.  By  inter- 
locutor dated  11th  February,  1905,  the  sheriff  (Crawford)  recalled 
the  sheriff  substitute's  interlocutor,  found  that  the  will  executed  by 
Mrs.  Westerman  on  4th  June,  1897,  was  revoked  by  her  subsequent 
marriage,  and  therefore  ranked  and  preferred  the  claimants  Worth 
and  others  in  terms  of  their  claim. 

The  claimants  Schwab  and  others  appealed  to  the  Court  of  Session. 

Lord  President.^*  Miss  Scott  was  a  domiciled  Englishwoman,  and 
she  executed  a  will — properly  executed  it  according  to  the  law  of  Eng- 
land— by  which  she  disposed  of  her  whole  estate.  Some  years  there- 
after she  married  Mr.  Westerman,  of  Aberdeen,  a  domiciled  Scotsman. 
Some  years  after  that  she  died,  having  continued  to  live  with  her 
husband  in  Scotland.  She  left  no  will  behind  her  except  the  will 
which  she  had  made  while  she  was  a  spinster.  Her  husband  claimed 
and  has  received  one-half  of  her  movable  estate  in  respect  of  his  jus 
relicti ;  and  a  competition  has  arisen  as  to  the  other  half,  the  competi- 
tors being  the  executors  under  her  will  which  I  have  referred  to,  and 
her  next  of  kin,  the  latter  claiming  upon  the  assumption  that  she  died 
intestate. 

The  argument  for  intestacy  turns  entirely  upon  the  fact  that,  by  the 
eighteenth  section  of  the  Wills  Act,  1837,  it  is  enacted  that  every 
will  made  by  a  man  or  woman  shall  be  revoked  by  his  or  her  mar- 
riage. It  is  admitted  by  the  parties  that  the  Wills  Act  does  not  apply 
to  Scotland;  but  it  is  contended  on  the  one  side  that,  being  an  Eng- 
lishwoman, the  moment  she  married  her  will  was  cut  down,  whereas, 
on  the  other  side,  it  is  maintained  that  the  moment  she  married  she 
became  a  Scotswoman,  and  that,  therefore,  the  Wills  Act  had  no  effect, 
and  the  will  was  not  cut  down.  The  sheriff  substitute  and  the  sheriff 
have  taken  different  views  upon  the  matter.  The  point  is  a  novel  one, 
as  to  which  I  do  not  think  that  in  this  country,  at  any  rate,  there  is  any 
authority.  The  sheriff  substitute  held  that  the  will  was  good.  His 
view  is  very  well  expressed.  He  says:  "It  is  the  law  of  the  testatrix's 
domicile  at  the  time  of  her  death  that  determines  the  validity  of  the 
will;  the  testatrix  died  a  Scotswoman,  and  by  the  law  of  Scotland  a 
will  valid  when  made  according  to  the  law  of  the  testator's  then  domi- 
cile remains  in  force,  notwithstanding  a  subsequent  marriage,  unless, 
of  course,  revoked.  No  doubt,  if  the  testatrix  here  had  married  an 
Englishman  the  will  would  have  been  ipso  facto  revoked  as  if  it 
had  never  been,  and  could  not  have  been  resuscitated  even  though. she 
afterwards  acquired  a  Scotch  domicile.  But  the  case  here  is  different. 
The  act  that  would  otherwise  have  revoked  the  will  exempted  the 
testatrix  from  the  provisions  of  the  revoking  statute."  The  sheriff, 
on  the  other  hand,  while  ag'recing  with  much  that  the  sheriff  substi- 

14  The  Lord  Dunedln. 


Ch.    4)-  INHERITANCE.  649 

tute  says,  states  this,  and  this  is  the  keynote  of  his  judgment:  "All 
three  things  are  simultaneous,  and  occur  at  the  same  moment — the 
marriage  and  its  two  results — the  revocation  of  the  will  and  the  change 
of  domicile.  The  important  point  is  that  the  two  results  are  strictly 
simultaneous  with  each  other.  The  same  stroke  which  cuts  off  the 
English  domicile  cuts  off  the  will.  It  is  impossible  to  say  that  the 
testratrix  had  acquired  a  Scottish  domicile  before  the  event  which 
revoked  the  will.  For  these  reasons,  I  am  of  opinion  that  the  will 
was  revoked,  and  that  the  claimants  under  it  cannot  succeed." 

In  these  circumstances  it  cannot  but  be  said  that  the  question  is  one 
of  nicety.  If  I  may  venture  a  criticism  upon  the  learned  sheriff's 
judgment  it  would  be  this,  that  I  do  not  think  the  case  can  be  well 
disposed  of  upon  what  I  may  call  metaphysical  considerations  as  to 
the  precise  moment  of  time  at  which  these  things  happened. 

I  think  the  way  to  dispose  of  the  case  is  to  begin  at  the  beginning  of 
the  elementary  principles  that  govern  such  matters.  The  first  question 
undoubtedly  is  this  :  What  is  the  domicile  of  the  alleged  testatrix  at  the 
time  when  she  died?  There  is  no  doubt  about  that,  everybody  agrees 
that  she  died  Scottish.  Therefore  you  have  first  the  undoubted  propo- 
sition that  it  is  the  law  of  Scotland  that  will  regulate  the  distribution 
of  the  effects  which  she  left  behind  her ;  and  indeed  it  is  conceded  not 
only  in  argument  at  the  bar,  but  it  is  conceded  de  facto  by  what  has 
happened,  because  of  course,  it  is  under  the  law  of  Scotland  that  one- 
half  of  her  movable  estate  has  been  given  to  her  surviving  husband  in 
the  name  of  jus  relicti,  which  is  a  purely  Scottish  right.  But,  further, 
the  law  of  Scotland  goes  on  to  say  that  the  half  which  is  not  affected 
by  the  jus  relicti,  the  half  which  is  the  dead's  part,  shall  be  carried  by 
a  will  if  she  left  one;  and  accordingly  it  is  the  law  of  Scotland  which 
will  first  of  all  decide  whether  she  did  leave  a  will,  or  whether  she  did 
not.  A  certain  document  is  produced  which,  upon  the  face  of  it, 
bears  to  be  a  will ;  and  here  the  law  of  Scotland,  although  completely 
keeping  to  itself  the  right  of  pronouncing  whether  anything  is  a  will 
or  is  not,  will  often  have  to  have  recourse  to  other  systems  of  law 
in  order  to  know  whether  a  particular  document  is  or  is  not  a  will. 
Take  the  case  that  the  will  in  question  was  a  will  which  undoubtedly 
was  badly  executed  according  to  the  law  of  Scotland,  but  of  which  it 
was  alleged  that  it  was  quite  properly  executed  according  to  the  law 
of  the  country  where  the  person  was  domiciled  at  the  time  that  he  ex- 
ecuted it.  The  law  of  Scotland  will  always  go  to  that  system  of  law 
and  will  inquire :  "Is  this  will  well  executed  according  to  the  forms 
of  that  other  country,  or  is  it  not?"  If  the  answer  is  in  the  affirmative, 
then  it  will  give  effect  to  it  according  to  the  law  of  that  country.  We 
had  a  very  excellent  argument  upon  both  sides  of  the  bar,  but  I  can- 
not go  the  whole  length  that  Mr.  Brown  wished  us  to  go  in  the  second 
portion  of  his  speech,  when  he  urged  that  the  moment  we  say  that 
this  lady  was  a  domiciled  Scotchwoman,  then  the  question  ended. 
The  question  does  not  end,  because,  once  you  have  to  go  to  another 


G50  PARTICULAR  SUBJECTS.  (Part  2 

system  to  find  out  whether  this  is  a  will  or  not,  you  have  got,  of  course, 
to  take  the  history  of  the  document.  I  am  assuming  you  are  answered 
at  once,  that,  according  to  the  English  law,  the  will  was  well  executed ; 
but  then  it  would  be  pointed  out  that  although  it  is  well  executed,  it 
was  put  out  of  existence  by  something  else  happening,  and  we  are 
bound  to. look  into  that.  Now,  what  is  that  something?  That  some- 
thing is  the  fact  of  the  marriage,  and  accordingly,  it  seems  to  me  that 
we  are  bound  to  consider  as  the  next  question,  what  was  the  state  of 
the  law  which  arose  upon  the  marriage?  By  what  law  is  that  to  be 
determined  ? 

It  seems  to  me  that  the  real  principle  is  that  when  you  come  to  con- 
sider the  effect  of  the  marriage  upon  the  patrimonial  rights  of  the 
persons  who  were  married,  you  must,  apart  of  course  from  the  ques- 
tions of  special  contract,  always  consider  that  according  to  the  law 
of  the  domicile  of  the  married  persons,  and  the  law  of  the  domicile  of 
married  persons  is  the  law  of  the  domicile  of  the  husband. 

I  am  confirmed  in  this  view,  because  I  think  it  is  directly  in  accord- 
ance with  the  view  that  was  taken  by  the  Master  of  the  Rolls,  now 
Lord  Lindley,  in  a  case  which  does  not  seem  to  have  been  cited  before 
either  of  the  learned  sheriffs,  Loustalan  v.  Loustalan,  L.  R.  (1900) 
211.  The  judgment  itself  does  not  touch  this  case,  and  there  was  so 
much  difference  of  opinion  among  the  learned  judges  who  disposed  of 
the  case  upon  the  precise  import  of  the  facts,  that  one  has  to  look 
at  the  case  with  considerable  care,  in  order  to  extract  from  it  what 
was  really  laid  down  in  it.  The  question  was,  whether  a  will  m.ade 
by  an  unmarried  Frenchwoman  was  or  was  not  revoked  by  her  sub- 
sequent marriage.  The  lady  in  question  was  undoubtedly  French  in 
origin.  She  came  over  to  England  and  entered  domestic  service  with 
an  English  family.  While  she  was  in  England  she  made  a  will.  It 
was  not  executed  according  to  the  law  of  England;  it  was  executed 
according  to  the  law  of  France.  About  four  years  after  that  she  left 
domestic  service  and  established  a  laundry  business  in  London.  In 
the  same  year  she  married  a  French  refugee,  who  was  flying  from 
France  at  that  time  in  order  to  escape  from  a  prosecution  for  some 
offence  which  he  had  committed.  Indeed,  he  had  been  sentenced  in 
absence  to  ten  years'  imprisonment.  The  parties  lived  together  for 
some  time  in  England,  and  then,  the  ten  years  having  run  out,  the 
husband  seemed  to  have  thought  it  safe  to  go  back  to  France  again, 
which  he  then  did.  He  and  his  wife  parted  company,  she  remaining 
in  England  and  he  going  to  France.  In  that  state  of  matters  she  died, 
leaving  no  will  behind  her  except  the  old  will  which  she  had  made  as 
a  spinster.  The  point  in  that  case,  as  in  this,  was  simply  whether  that 
will  had  been  revoked  by  her  marriage.  The  case  was  first  disposed  of 
by  the  late  President  of  the  Probate  Division,  Lord  St.  Helier,  and 
it  subsequently  went  to  the  Court  of  Appeal,  composed  of  Lord  Lind- 
ley, Master  of  the  Rolls,  and  Lords  Justices  Rigby  and  Vaughan 
Williams.     The  learned  Lords  took  very   different  views   upon  the 


Ch.    4)  INHERITANCE.  651 

facts.  The  President  held  that  at  the  date  of  her  death  her  domicile 
was  in  France,  because,  in  his  opinion,  her  husband  was  domiciled  in 
France  at  her  death,  but  he  held  that  w^hen  they  married,  at  the 
moment  of  marriage,  they  intended  that  the  matrimonial  regime  should 
be  in  England;  and  upon  that  he  came  to  certain  conclusions.  The 
Master  of  the  Rolls  did  not  take  that  view  at  all.  He  thought  that 
the  domicile  of  both  parties  was  French  all  along,  that  is  to  say,  he 
thought  that  she  had  not  lost  her  French  domicile  when  she  married, 
and  that  he  did  not  lose  his  French  domicile  when  he  married  her, 
in  respect  that  he  went  back  to  France;  and  accordingly  she  was 
French  from  beginning  to  end.  The  other  two  Lord  Justices,  on  the 
other  hand,  thought  that  the  husband's  domicile  at  the  time  of  the 
marriage  was  English,  and  upon  that  view  they  held  that  the  will 
was  not  good.  But  I  am  bound  to  state  that  I  do  not  think  they  put 
their  judgment  nearly  so  much  upon  the  operation  of  the  marriage, 
in  respect  of  the  Wills  Act,  as  they  did  upon  this,  that  if  the  husband 
was  a  domiciled  Englishman  at  that  time,  which  was  before  some  of 
the  recent  Married  Women's  Property  Acts,  the  result  was  simply 
to  transfer  the  lady's  whole  estate  to  the  husband,  and  that  consequent- 
ly it  was  not  so  much  a  question  of  wdiether  the  will  was  good  or  not, 
as  a  question  of  there  being  nothing  for  the  will  to  operate  upon.  I 
think  Mr.  Watson's  observation  was  well  founded;  that  although  the 
case  looks,  upon  the  mere  reading  of  the  rubric,  to  be  an  authority 
against  him,  it  is  not  really  an  authority  upon  this  point,  and  I  agree 
with  him. 

There  are  certain  observations  of  both  Lord  Justice  Rigby  and  Lord 
Justice  Vaughan  Williams  to  the  effect  that  this  18th  section  of  the 
Wills  Act  is  part  of  the  matrimonial  and  not  of  the  testamentary  law 
with  which  I  find  it  difficult  to  agree.  I  am  not  sure  that  I  quite  un- 
derstand what  they  mean  by  that,  because  I  cannot  see  that  you  can 
divide  the  law  into  chapters,  and  say  that  such  a  thing  belongs  to  one 
portion  of  the  law  and  not  to  another.  Of  course,  in  many  cases,  it 
may  be  convenient  to  do  so  for  purposes  of  discussion  or  reference, 
but  I  do  not  see  how  the  effect  of  a  thing  can  depend  upon  that  di- 
vision into  chapters.  What  I  take  from  the  Case  of  Loustalan,  L.  R. 
(1900)  211,  accordingly,  is  not  the  decision,  but  rather  certain  obser- 
vations of  Lord  Lindley,  which,  I  think,  are  absolutely  in  point  in  the 
view  of  the  law  which  I  am  suggesting,  although  as  a  matter  of  fact, 
they  did  not  receive  application  in  that  case  owing  to  the  view  of  the 
facts  that  Lord  Lindley  took. 

Now,  Lord  Lindley  begins,  just  as  I  have  ventured  to  begin,  by 
saying  you  must  first  of  all  begin  at  the  death  of  the  alleged  testatrix, 
and  find  what  the  domicile  then  was.  He  held  that  her  domicile  at 
her  death  was  French ;  but  he  goes  on  to  say :  "The  validity  of  a  will 
of  movables  made  by  a  person  domiciled  in  a  foreign  country,  at  the 
time  of  such  person's  death,  not  only  may,  but  must,  depend  on  the 


652  PARTICULAR  SUBJECTS.  (Part  2 

view  its  Courts  take  of  the  validity  of  the  will  when  made."  Here  it 
is  agreed  that  the  will  was  valid  when  made.  But  then  he  goes  on  to 
say,  not  only  that  it  depends  on  the  validity  of  the  will  when  made, 
but  on  its  subsequent  revocation  if  that  question  arises.  "These  ques- 
tions," he  says,  "may  or  may  not  turn  on  the  domicile  of  the  testator 
as  understood  in  this  country,"  and  then  he  goes  on  to  state  the  facts, 
and  says — "By  whatever  court  this  question  is  to  be  decided,  the  Eng- 
lish law  of  marriage,  which  in  such  a  case  involves,  and  indeed  turns  on 
English  views  of  domicile,  must  be  considered.  If  this  view  be  ig- 
nored, the  effect  of  the  marriage  will  be  inadequately,  and  indeed  er- 
roneously, ascertained.  If  the  domicile  of  the  testratrix  is  to  be  treat- 
ed as  English,  when  she  became  a  married  woman  her-will  was  revoked 
by  her  marriage,  for  such  is  the  law  of  England  whatever  the  inten- 
tions of  parties  may  be ;  but  if  her  domicile  was  French,  her  will 
would  not  be  revoked  by  English  law,  and  still  less  by  French  law. 
Both  laws  are  alike  in  regarding  her  domicile  as  that  of  her  husband 
as  soon  as  she  married  him.  The  effect  of  her  marriage  must,  there- 
fore, depend  upon  the  English  view  of  his  domicile."  That  is  exactly 
what  I  have  suggested  to  your  Lordships.  Further  on,  in  a  later 
portion  of  his  judgment,  his  view  is  made  perfectly  clear,  if  your 
Lordships  keep  in  mind  what  I  have  said  upon  the  facts  of  the  case, 
because  at  page  233  the  learned  Lord  says  this :  "The  domicile  of 
the  testratrix  being  French  when  she  made  her  will  and  when  she  died, 
it  became  necessary  to  ascertain  the  effect  of  her  will  on  her  movable 
property  according  to  French  law.  The  husband  being,  in  my  opin- 
ion, domiciled  in  France  when  she  married,  it  became  necessary  to 
ascertain  the  effect  of  such  marriage  by  French  law  upon  her  will; 
and  if,  in  order  to  ascertain  this,  it  became  necessary  for  the  French 
experts  to  be  told  what  the  English  law  was,  they  should  have  been 
told  that  it  depended  on  the  view  which  an  English  court  would  take 
of  the  domicile,  in  the  English  sense,  of  the  husband;  and  if  I  am 
right  in  my  view  of  his  domicile,  the  experts  should  have  been  told 
that  by  English  law  the  marriage  in  this  case  did  not  revoke  the  wife's 
will." 

Your  Lordships  will  notice  that  I  have  emphasised  the  fact  that 
he  always  speaks  of  the  husband  and  his  domicile.  He  excludes  al- 
together the  consideration  of  what  was  the  domicile  of  the  wife. 
He  says  it  is  quite  enough  if  you  settle  one  way  or  another  what  was 
the  domicile  of  her  husband  at  the  time  of  the  marriage,  because  the 
moment  you  do  that  you  settle  what  her  domicile  is;  and  then  if  you 
settle  what  the  domicile  of  the  parties  at  the  time  of  the  marriage  is, 
you  at  once  settle  the  law  according  to  which  the  proprietary  effects  of 
the  marriage  are  to  be  judged — either  French  law  if  he  is  a  domiciled 
Frenchman,  or  English  law  if  he  is  a  domiciled  Englishman.  And, 
accordingly,  he  further  goes  on  to  say:  "It  was  not  necessary,  or, 
indeed,  proper  on  this  occasion  to  pursue  the  inquiry  further,  and  to  see 


Ch.    4)  INHERITANCE.  653 

what  matrimonial  reg^ime  the  parties  intended  to  adopt.  It  was  not 
necessary  to  cite  authorities  to  shew  that  it  is  now  settled  that  ac- 
cording to  international  law,  as  understood  and  administered  in  Eng- 
land, the  effect  of  marriage  on  the  movable  property  of  spouses  de- 
pends (in  the  absence  of  any  contract)  on  the  domicile  of  the  husband 
in  the  English  sense.  *  *  *  This  being  clear,  the  will  was  not  re- 
voked."  That  would  be  a  non  sequitur  unless  the  whole  point  de- 
pended upon  the  domicile  of  the  husband  at  the  time  of  the  marriage. 

Accordingly,  I  think  that,  carefully  looked  into,  it  will  be  found  that 
I  certainly  have  the  great  authority  of  Lord  Lindley  for  the  proposi- 
tion that  I  am  putting,  that  when  you  come  to  consider  what  the  effect 
of  the  marriage  is  upon  the  will,  which  you  have  already  started 
with  as  being  properly  executed,  you  must  consider  that  in  the  light 
of  the  law  of  the  domicile  of  the  married  persons  at  the  date  of  the 
marriage,  and  the  law  of  the  domicile  of  the  married  persons  is  the 
law  of  the  domicile  of  the  husband.  Here  the  domicile  of  the  hus- 
band at  the  date  of  the  marriage  was  Scottish,  and,  therefore,  you 
have  to  consider  the  effect  of  the  marriage  upon  the  will  in  the  light 
of  the  Scottish  law,  and  not  of  the  English.  That  being  so,  there  is  no 
question  whatsoever  that  by  the  Scottish  law  the  will  of  this  spinster, 
being  valid  before  her  marriage,  was  not  revoked,  and,  accordingly, 
I  think  the  will  stands. 

That  disposes  of  the  case;  but  I  ought  to  mention  a  very  ingeni- 
ous argument  Mr.  Watson  pressed  upon  us,  which  was  this,  that  the 
effect  of  the  English  Wills  Act  was  really,  so  to  speak,  to  read  a 
clause  into  every  English  person's  will  to  the  effect  that  his  will  shall 
be  revoked  on  marriage.  He  cited  authorities  in  which  certain  ex- 
pressions were  used  that  are  consistent  with  that  view.  I  am  not  in 
any  way  controverting  the  authority  of  these  cases,  because  they  do 
not  touch  the  point  at  all.  It  would  be  quite  a  convenient  way  of 
speaking,  to  say  that  every  will  has  got  that  read  into  it;  but  if  you 
are  to  press  that  form  of  expression  to  more  than  a  convenient  way  of 
speaking,  then  I  do  not  agree.  I  do  not  think  we  need  go  further  on 
this  poinjt  than  to  cite  the  Case  of  Loustalan,  L.  R.  (1900)  211,  where 
the  court  held  the  will  was  revoked.  The  lady  in  that  case  married  a 
person  whom  the  court  held  to  be  a  domiciled  Englishman.  Of  course 
it  does  not  matter  whether  the  facts  were  rightly  or  wrongly  decided. 
The  husband  in  that  case  was  a  domiciled  Englishman  according  to 
the  majority  of  the  court,  and  that  revoked  the  will.  That  could  only 
be  by  the  operation  of  the  act  at  the  time  of  the  marriage,  because  it 
is  evidently  absurd  to  suppose  that  that  French  spinster's  will  had 
ingrafted  into  it  a  condition  that  revoked  it  upon  marriage,  because 
everybody  agrees  that,  at  the  time  she  made  the  will,  the  will  was  a 
French  document,  and  not  an  English  document.  Accordingly,  I 
think  that  shews  that  what  Mr.  Watson  says  is  no  more  than  a  conveni- 
ent form  of  expression,  and  does  not  really  go  to  the  root  of  the  matter. 


654  PARTICULAR  SUBJECTS.  (Part  2 

On  the  whole  matter  I  am  of  opinion  that  we  should  recall  the  judg- 
ment of  the  sheriff,  and  revert  to  the  judgment  of  the  sheriff  substi- 
tute.^^ 


HOPE  V.  BREWER. 

(Court  of  Appeals  of  New  York,  1S92.    136  N.  Y.  126,  32  N.  E.  558,  IS  L.  R.  A. 

458.) 

Thomas  Hope  died  domiciled  in  the  state  of  New  York.  By  the  resid- 
uary clause  of  his  will  he  devised  and  bequeathed  all  the  residue  and 
remainder  of  his  property  to  his  executors  and  their  survivors,  in 
trust  for  the  purpose  of  founding  and  endowing  an  infirmary  for  the 
care  and  relief  of  sick  and  infirm  persons,  to  be  established  at  the 
testator's  native  place  of  Langholm,  in  Dumfrieshire,  Scotland.  The 
executors  were  required  to  convert  the  residuary  estate  into  money  and 
to  pay  the  same  over  to  the  Scotch  trustees,  who  were  empowered 
to  establish  the  institution  and  to  administer  the  charity.  The  disposi- 
tions of  the  residuary  estate  were  perfectly  valid  under  the  law  of 
Scotland,  and  the  foreign  trustees  were  competent  to  take  the  fund 
and  to  administer  the  trust  under  Scotch  law.  This  action  is  brought 
by  a  nephew  of  the  testator  to  set  aside  as  void  the  dispositions  of 
the  residuary  estate  on  the  ground  that  they  are  too  indefinite  and  un- 
certain in  their  subjects  and  objects  and  unlawfully  suspend  the  power 
of  alienation  of  real  estate  and  the  absolute  ownership  of  personal 
property.^^ 

O'Brien,  J.^'^  *  *  *  This  brings  us  to  the  important  question 
in  this  case,  whether  the  courts  of  this  state  are  required  in  such  a 
case  to  interpose  our  own  laws  with  respect  to  the  requisites  of  a  valid 
testamentary  trust  in  order  to  defeat  the  disposition  which  the  testa- 
tor has  made  of  his  property,  and  which  is  perfectly  valid  where  he 
intended  the  gift  to  take  effect.  In  the  great  variety  of  cases  bearing 
upon  the  validity  of  trusts  of  this  character,  and  in  the  manifold  as- 
pects in  which  questions  growing  out  of  such  dispositions  of  property 
have  arisen  and  been  presented  to  the  courts,  it  is  not,  perhaps,  sur- 
prising that,  in  some  of  the  opinions  of  the  courts,  dicta,  expressed  in 
general  language,  may  be  found  giving  support  to  the  plaintift"s  con- 
tention. But  I  have  not  been  able  to  find  any  well-considered  case,  in 
which  the  question  was  directly  involved,  where  a  gift  to  a  foreign 
charity  in  trust,  contained  in  a  valid  testamentary  instrument,  has  been 
held  void,  where  there  was  a  trustee  competent  to  take  and  hold,  and  the 
trust  was  capable  of  being  executed  and  enforced,  according  to  the  law 
of  the  place  to  which  the  property  was  to  be  transmitted  under  the  will 

ic  Lord  Kinnear  delivered  a  concurring  opinion,  which  has  been  omitted. 
16  This  brief  statement  of  facts  has  been  abstracted  from  the  opinion. 
17 A  part  of  the  opinion  has  been  omitted. 


Ch.    4)  INHERITANCE.  655 

of  the  donor.  The  law  of  this  state  inhibiting  the  creation  of  trusts  not 
expressly  authorized  by  statute,  and  the  suspension  of  the  power  of  al- 
ienation of  real  estate,  and  the  absolute  ownership  of  personal  property, 
is  founded  upon  a  public  policy  of  our  own.  It  was  said  of  the  English 
statute  of  mortmain  that  its  object  was  political,  and  intended  to  have 
but  a  local  operation.  It  was  enacted  to  prevent  what  was  deemed  a  pub- 
lic mischief,  and  not  to  regulate,  as  between  ancestor  and  heir,  the 
power  of  disposing  by  will,  or  to  prescribe,  as  between  grantor  and 
grantee,  the  forms  of  alienation.  It  is  an  incident  only,  and  with 
reference  to  a  particular  object,  that  the  exercise  of  the  owner's  do- 
minion over  the  property  is  abridged.  The  restraints  which  the  stat- 
utes imposed  upon  owners  of  property  had  reference  to  a  mischief 
existing  in  England  only.  Attorney  General  v.  Stewart,  2  Mer.  143. 
Statutes  of  a  kindred  nature,  enacted  in  this  state  and  in  the  various 
states  of  the  Union,  whatever  their  form,  were  intended  to  operate 
within  and  promote  the  welfare  of  the  people  of  each  particular  state, 
and  it  was  not  contemplated  that  they  should  have  any  extraterritorial 
effect.  It  is  not  a  matter  of  any  public  concern  whatever  to  this  state 
whether  the  personal  property  of  a  person  domiciled  here  shall  pass 
to  his  heirs  or  next  of  kin  in  a  foreign  country,  or  to  trustees  in  trust 
for  charity  residing  there,  or  even  to  a  foreign  corporation  for  pur- 
•  poses  of  charity.    Vansant  v.  Roberts,  3  Md.  119. 

Our  law  with  respect  to  the  creation  of  trusts,  the  suspension  of  the 
power  of  alienation  of  real  estate,  and  the  absolute  ownership  of  per- 
sonal, was  designed  only  to  regulate  the  holding  of  property  under 
our  laws  and  in  our  state,  and  a  trust  intended  to  take  effect  in  an- 
other state,  or  in  a  foreign  country,  would  not  seem  to  be  within 
either  its  letter  or  spirit.  When  a  citizen  of  this  state,  or  a  person 
domiciled  here,  makes  a  gift  of  personal  estate  to  foreign  trustees  for 
the  purpose  of  a  foreign  charity,  our  courts  will  not  .interpose  our 
local  laws  with  respect  to  trusts  and  accumulations  to  arrest  the  dis- 
position made  by  the  owner  of  his  property,  but  will  inquire  as  to  two 
things:  First,  whether  all  the  forms  and  requisites  necessary  to  con- 
stitute a  valid  testamentary  instrument,  under  our  law,  have  been 
complied  with ;  and,  second,  whether  the  foreign  trustees  are  compe- 
tent to  take  the  gift,  for  the  purposes  expressed,  and  to  administer 
the  trust  under  the  law  of  the  country  where  the  gift  was  to  take 
effect;  or,  as  Judge  Rapallo  stated  the  rule  with  respect  to  gifts  to 
charity  generally,  the  inquiry  is  "whether  the  grantor  or  devisor  of  a 
fund  designed  for  charity  is  competent  to  give,  and  whether  the 
organized  body  is  endowed  by  law  with  capacity  to  receive  and  to  hold 
and  administer  the  gift."  Holland  v.  Alcock,  108  N.  Y.  337,  16  N.  E. 
305,  2  Am.  St.  Rep.  420.  In  this  case  the  testator  was  unquestionably 
competent  to  give,  and  did  make  the  gift  under  all  the  forms  and  req- 
uisites necessary  to  constitute  a  valid  testamentary  disposition.  So 
were  the  trustees  to  whom  the  gift  was  made,  competent  to  take  and 
administer  it,  under  Scotch  law,  and  the  only  question  is  whether  we 


656  PARTICULAR  SUBJECTS.  (Part  3 

must  defeat  the  gift  and  frustrate  the  intentions  of  the  testator  be- 
cause he  neglected  to  observe,  in  all  respects,  the  rules  of  our  local 
law  with  regard  to  the  creation  of  trusts  and  perpetuities. 

Unless  we  are  concluded  upon  this  question  by  established  prin- 
ciples of  law,  there  is  no  reason  growing  out  of  the  facts  surrounding 
the  case,  or  founded  upon  public  policy,  for  diverting  the  property  into 
channels  not  contemplated  by  the  testator.  It  is  no  doubt  true  that 
the  validity  of  a  disposition  of  personal  property  at  the  domicile  of 
the  owner  is  generally  the  test  of  its  validity  in  other  jurisdictions. 
But  this  rule,  I  apprehend,  only  requires  compliance  with  forms  and 
with  principles  of  law  generally  or  universally  recognized  as  essential 
to  the  transfer  or  transmission  of  property.  If  personal  property  is 
disposed  of  by  will,  and  in  trust  for  charity,  to  take  effect  in  another 
country,  no  good  reason  is  apparent  for  insisting  that  a  full  compli- 
ance with  the  local  law  of  the  domicile,  with  respect  to  the  form  or 
duration  of  the  trust,  or  the  definition  of  the  beneficiaries,  is  necessary 
to  the  validity  of  the  disposition.  Such  laws  are  not  generally  regarded 
as  limitations  upon  the  power  of  the  owner  to  transfer  or  transmit  the 
property,  but  regulations  applicable  to  the  holding  of  property  in  the 
particular  community,  founded  upon  political  or  social  considerations. 
In  Cross  v.  Trust  Co.,  131  N.  Y.  330,  30  N.  E.  125,  15  L.  R.  A.  606, 
27  Am.  St.  Rep.  597,  we  held  that  a  disposition  of  personal  property, 
by  will  and  in  the  form  of  a  trust,  to  be  executed  in  this  state,  made 
by  a  person  domiciled  in  another  state,  valid  at  the  place  of  the  domi- 
cile, was  valid  here,  though  the  absolute  ownership  of  the  property 
was  suspended  for  a  period  longer  than  is  permitted  by  our  statute. 
The  principal  ground  of  that  decision  was  that  our  courts  were  re- 
quired, under  the  doctrine  of  comity,  to  recognize  a  disposition  of 
personal  property  made  in  another  state  as  valid,  if  valid  there,  and 
not  in  its  nature  unlawful,  or  against  public  policy.  In  the  creation  of 
the  trust  our  statute  in  regard  to  perpetuities  was  disregarded,  but 
we  held  that  it  did  not  apply  to  a  will  made  by  a  person  who  was  domi- 
ciled in  another  state.  In  order  to  sustain  this  will,  we  must  go  a 
step  further,  and  hold  another,  but  a  kindred  proposition,  namely,  that 
a  disposition  of  personal  property  made  in  this  state,  by  a  competent 
testator,  in  a  valid  testamentary  instrument,  to  trustees  in  a  foreign 
country,  for  the  purposes  of  a  charity  to  be  established  in  that  coun- 
try, is  valid,  although  not  in  compliance  with  our  statute  or  the  rules 
of  law  in.  force  here  in  regard  to  trusts  and  perpetuities,  providing  it 
is  valid  by  the  law  of  the  place  where  the  gift  is  to  take  effect,  and 
which  governs  the  trustee  and  the  property  when  transmitted  there. 
If  our  statute,  as  I  have  attempted  to  show,  does  not  apply  to  such  a 
case,  then  there  is  nothing  in  the  way  of  the  validity  of  such  a  dis- 
position of  property.  The  question  has  been  often  referred  to  in  this- 
court,  and,  though  the  precise  question  was  not  involved,  the  expres- 
sions of  opinion  are  in  favor  of  sustaining  this  will.  In  the  leading- 
case  of  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  Allen,  J.,  discussing 


Ch.    4)  INHERITANCE.  657 

the  question,  said:  "The  courts  of  this  state  will  not  administer  a 
foreign  charity,  but  they  will  direct  money  devoted  to  it  to  be  paid 
over  to  the  proper  parties,  leaving  it  to  the  courts  of  the  state  within 
which  the  charity  is  to  be^  established,  to  provide  for  its  due  adminis- 
tration and  for  the  proper  application  of  the  legacy.  Hill,  Trustees, 
468 ;  2  Story,  Eq.  Jur.  §  430 ;  Provost,  etc.,  of  Edinburgh  v.  Aubrey, 
Amb.  236;  Burbank  v.  Whitney,  24  Pick.  154,  35  Am.  Dec.  312;  At- 
torney General  v.  Lepine,  2  Swanst.  181.  *  *  *  ^  gjf|-  \jy  ^yju 
of  a  citizen  of  this  state  to  a  charity  or  upon  a  trust  to  be  adminis- 
tered in  a  sister  state  which  would  be  lawful  in  this  state,  the  domi- 
cile of  the  donor,  would  not  be  sustained,  if  it  was  not  in  accordance 
with  the  laws  of  the  state  in  which  the  fund  was  to  be  administered. 
Bequests  in  aid  of  foreign  charities,  valid  and  legal  in  the  place  of 
their  existence,  will  be  supported  by  the  courts  of  the  state  in  which 
the  bequests  are  made.  Hill,  Trustees,  457.  If  the  legatee,  whether 
a  natural  or  an  artificial  person,  and  whether  he  takes  in  his  own  right 
or  in  trust,  is  capable,  by  the  law  of  his  domicile,  to  take  the  legacy 
in  the  capacity  and  for  the  purposes  for  which  it  is  given,  and  the  be- 
quest is  in  other  respects  valid,  it  will  be  sustained  irrespective  of  the 
law  of  the  testator's  domicile.  *  *  *  It  is  no  part  of  the  policy 
of  the  state  of  New  York  to  interdict  perpetuities  or  gifts  in  mortmain 
in  Pennsylvania  or  California.  Each  state  determines  these  matters 
according  to  its  own  views  of  policy  or  right,  and  no  other  state  has 
any  interest  in  the  question,  and  there  is  no  reason  why  the  courts  of 
this  state  should  follow  the  funds  bequeathed  to  the  Centenary  Fund 
Society  to  Pennsylvania  to  see  whether  they  will  be  there  administered 
in  all  respects  in  strict  harmony  with  our  policy  and  our  laws.  The 
question  was  before  the  court  in  Fordyce  v.  Bridges,  2  Phil.  Ch.  49  T. 
upon  the  bequest  of  a  fund  in  England  to  be  invested  in  a  Scotch  entail. 
Lord  Cottenham  says :  'An  objection  was  made  that  the  bequest  of  a 
fund,  to  be  invested  in  a  regular  Scotch  entail,  was  void  as  a  perpe- 
tuity. The  rules  acted  upon  by  the  courts  of  this  country,  with  re- 
spect to  testamentary  disposition  tending  to  perpetuities,  relate  to  this 
country  only.  What  the  law  of  Scotland  may  be  upon  such  a  sub- 
ject the  courts  of  this  country  have  no  judicial  knowledge,  nor  will 
they,  I  apprehend,  inquire.  The  fund  being  to  be  administered  in  a* 
foreign  country  is  payable  here",  though  the  purpose  to  which  it  is 
to  be  applied  would  have  been  illegal,  if  the  administration  of  the  fund 
had  been  to  take  place  in  this  country.  This  is  exemplified  by  the 
well-established  rule  in  cases  of  bequests  within  the  statute  of  mort- 
main. A  charity  legacy  void  in  this  country  under  the  statute  of  mort- 
main is  good  and  payable  here,  if  for  a  charity  in  Scotland.'  To  the 
same  effect  is  Vansant  v.  Roberts,  3  Md.  119." 

In  the  case  of  Manice  v.  Manice,  43  N.  Y.  303,  Judge  Rapallo,  dis- 
cussing the  validity  of  a  bequest  by  a  person  domiciled  in  this  state 
to  Yale  College,  said :  "The  direction  to  pay  to  the  treasurer  is  a  good 
gift  to  the  college,  the  college  having  been  shown  to  be  capable  of 

LOE.CONF.L. — i2 


658  PARTICULAR  SUBJECTS.  (Part  2 

taking-.  Emery  v.  Hill,  1  Russ.  112;  De  Witt  v.  Chandler,  11  Abb. 
Pr.  459;  Hornbeck  v.  Society,  2  Sandf.  Ch.  133.  The  college  is  a 
foreign  corporation,  it  being  authorized  by  the  laws  of  its  own  state 
to  take.  *  *  *  "  After  discussing  the  question  whether  the  words 
of  the  will  were  sufficient  to  create  a  trust,  the  learned  judge  con- 
tinued :  "These  are  questions,  however,  which  must  necessarily  be 
determined  by  the  courts  of  the  state  in  which  the  corporation  lega- 
tee is  situated.  The  fund  is  to  go  there,  and  be  there  administered. 
The  will  of  the  testator,  so  far  as  the  courts  of  this  state  can  act  upon 
it,  is  fully  executed  when  the  money  is  paid  to  the  proper  officer  of 
the  foreign  corporation ;  and  there  is  no  law  of  this  state  prohibiting 
gifts  to  such  foreign  corporation.  Though  the  laws  of  the  state  of 
that  corporation  may  permit  it  to  hold  and  administer  property  in 
perpetuity,  or  to  accumulate  it,  the  local  policy  of  this  state  upon  that 
subject  is  not  interfered  with  by  allowing  property  of  our  citizens 
to  pass  to  such  foreign  corporation,  and  be  administered  by  it  in  such 
foreign  state  according  to  its  own  laws.  Fordyce  v.  Bridges,  10  Beav. 
105,  2  Phil.  Ch.  497;  Vansant  v.  Roberts,  3  Md.  119;  Chamberlain 
V.  Chamberlain,  43  N.  Y.  424." 

The  same  doctrine  was  approved  in  the  subsequent  case  of  Despard 
V.  Churchill,  53  N.  Y.  192,  and  property  in  this  state  of  a  testator  in 
California  was  remitted  to  that  state,  to  be  administered  under  the 
will,  notwithstanding  it  was  devoted  to  the  purposes  of  a  trust  which 
would  have  been  unlawful  in  this  state,  though  valid  there.  We  have 
recently  held  that  a  bequest  of  the  residuary  estate  of  a  testator  dom- 
iciled here  to  a  municipality  in  the  German  empire  was  valid,  it  appear- 
ing that  the  municipality  had  capacity  by  the  law  of  the  place  to  take 
and  hold  the  gift.  In  re  Huss,  126  'N.  Y.  537,  27  N.  E.  784,  12  L. 
R.  A.  429.  See,  also,  Kerr  v.  Dougherty,  79  N.  Y.  327 ;  Hollis  v. 
Seminary,  95  N.  Y.  166. 

We  have  examined  the  cases  cited  by  the  learned  counsel  for  the 
plaintiff  in  support  of  his  contention.  They  contain  general  expres- 
sions of  the  rule  that  a  testamentary  disposition  of  property  invalid  at 
the  domicile  of  the  owner  is  invalid  everywhere,  and,  indeed,  this  rule 
is  stated  in  some  of  the  cases  to  which  I  have  referred,  and,  as  a  gen- 
eral principle,  cannot  be  questioned.  But  when  it  is  said  that  such  a 
disposition  is  invalid  everywhere  if  invalid  at  the  domicile,  the  rule 
refers  to  some  defect  in  the  execution  of  the  instrument,  the  capacity 
of  the  testator,  the  legal  construction  of  the  instrument,  the  form 
or  object  of  the  disposition,  and  not  to  the  noncompliance,  in  framing 
the  terms  of  the  trust,  with  a  local  statute  or  rule  of  law  regulating 
the  holding  of  property  by  the  citizens  of  the  state  or  country  where 
the  will  was  made,  and  which  had  no  extraterritorial  force.  Perhaps 
the  strongest  case  in  support  of  the  plaintiff's  view  is  that  of  Bascom 
V.  Albertson,  34  N.  Y.  587.  In  that  case  there  was  a  bequest  of  the 
residuary  estate  by  a  testator  in  this  state  to  five  unnamed  persons  as 
trustees,  to  be  appointed  by  the  Supreme  Court  of  the  state  of  Ver- 


Ch.    4)  INHERITANCE.  659 

mont,  to  found  and  establish  an  institution  in  that  state  for  the  -educa- 
tion of  females.  This  bequest  was  held  to  be  void.  The  discussion  in 
this  court  proceeded  almost  entirely  upon  the  question  whether  it 
could  be  sustained  under  the  Eng-lish  doctrine  of  charitable  uses  sanc- 
tioned by  a  majority  of  the  court  in  Williams  v.  Williams,  8  N.  Y. 
525,  and  it  was  held  that  it  could  not.  The  case  differs  from  the  one 
at  bar  in,  at  least,  one  important  particular.  The  testator  failed  to 
appoint  trustees  competent  to  take,  and  it  did  not  appear  that  those 
appointed  by  the  action  of  the  judges  of  the  Supreme  Court  of  Ver- 
mont could  take  or  hold,  or  that  the  trust  could  be  administered,  under 
the  laws  of  that  state.  Besides,  the  views  expressed  in  the  prevailing 
opinion,  in  so  far  as  they  are  in  conflict  with  the  judgment  now  under 
review,  must  be  deemed  to  be  modified  by  the  subsequent  cases  of 
Chamberlain  v.  Chamberlain,  Manice  v.  Manice,  and  Despard  v. 
Churchill,  supra.  Our  conclusion  is  that,  even  if  it  be  assumed  that  the 
bequest  of  the  residuary  estate  to  the  Scotch  trustees,  in  trust  for  the 
purpose  of  founding  and  maintaining  the  hospital,  should  be  held  void 
under  our  law  for  the  reason  that  the  absolute  ownership  of  personal 
property  is  unlawfully  suspended,  or  that  the  beneficiaries  of  the  trust 
are  not  sufficiently  specified  or  defined,  still  that  does  not  render  the 
disposition  invalid,  as  these  objections  do  not  apply  to  a  gift  in  trust 
to  be  administered  in  Scotland,  and  perfectly  valid  there.  This  re- 
sult, I  think,  is  in  harmony  with  the  general  tendency  of  courts  to 
sustain  testamentary  dispositions  of  property  when  it  fairly  can  be 
done  under  the  rules  of  law,  and  in  accordance  with  principles  of  en- 
lightened justice.  The  judgment  should  therefore  be  affirmed,  with 
costs  to  the  executors,  the  foreign  trustees,  and  the  plaintiff,  payable 
out  of  the  estate.    All  concur.^^ 


MAYOR,  ALDERMEN  AND  CITIZENS  OF  CANTERBURY  v. 

WYBURN. 

(Judicial  Committee  of  Trivy  Council,  1804.     [1895]  L.  R,  App.  Cas.  89,  G4  L. 

J.  P.  C.  36.) 

Lord  HoBHOuSE.  On  the  13th  of  June,  1891,  J.  G.  Beaney,  an  in- 
habitant of  Melbourne  and  a  domiciled  Victorian,  died,  having  by  a 
codicil  to  his  will  bequeathed  legacies  to  the  appellants  in  the  following 
terms : 

"I  direct  my  said  trustee  to  pay  to  the  mayor  and  corporation  of 
the  said  city  of  Canterbury  for  the  time  being  the  sum  of  ten  thousand 

18  The  law  of  the  testator's  domicile  and  not  the  law  of  the  domicile  of  the 
trustee  will  determine  whether  an  active  or  passive  trust  has  been  created. 
Rosenbaum  v.  Garrett,  57  N.  J.  Eq.  186,  41  Atl.  252  (1898).  But  the  question 
whether  the  income  of  a  trust  fund  is  subject  to  the  claims  of  creditors  is 
governed  by  the  law  of  the  state  where  the  trust  fund  is  situated.  Keeney  y. 
Morse.  71  App.  Div.  104,  75  N.  Y.  Supp.  728  (1902). 


660  PARTICULAR  SUBJECTS.  (Part  2 

pounds,  for  the  purpose  of  their  buying  a  suitable  piece  of  ground  at 
Canterbury  aforesaid  and  erecting  thereon  with  as  little  delay  as  pos- 
sible a  free  library  and  reading-room  for  the  working  classes ;  such 
building  when  erected  to  be  called  the  'Beaney  Institute  for  the  Educa- 
tion of  Working  Men.'  And  I  also  bequeath  to  the  said  mayor  and 
corporation  of  the  said  city  of  Canterbury  all  my  medical  diplomas  and 
military  commissions  for  the  purpose  of  their  being  hung  up  and  ex- 
hibited in  the  principal  hall  of  the  said  building  so  to  be  erected  as 
aforesaid'." 

By  another  codicil  he  bequeathed  some  more  articles  of  a  like  kind 
in  a  like  way.  His  residuary  legatees  are  certain  charitable  institu- 
tions in  Melbourne,  of  whom  the  respondents,  the  Melbourne  Hospital, 
have  been  selected  to  defend  the  interests  of  all.  They  contend  here 
that  the  gift  of  ilO,000,  to  the  appeUants  must  fail  by  reason  of  the 
English  statute  law  which  restricts  gifts  to  charitable  uses. 

The  case  was  argued  before  A'Beckett,  J.,  upon  certain  questions 
propounded  for  the  court  to  answer;  and  by  his  answers  that  learned 
judge  maintained  the  validity  of  the  gifts,  and  directed  the  executors 
to  comply  with  the  directions  of  the  testator.  He  finds  that  there  is 
nothing  in  the  law  of  Victoria  to  forbid  such  a  testamentary  gift.  He 
adds: 

"If  it  had  been  shown  that  under  the  law  as  it  stands  in  England 
the  corporation  of  Canterbury  could  not  lawfully  spend  ilO,000.  in 
buying  land  and  erecting  a  building  as  contemplated  by  the  testator, 
and  therefore  that  the  object  of  the  testator  could  not  lawfully  be  ac- 
complished, I  should  not  direct  the  executors  to  pay  the  legacy  to  the 
corporation.  This  has  not  been  shewn.  It  appears  that  the  corpora- 
tion could  lawfully  have  expended  £10,000.  in  this  manner  if  the  tes- 
tator had  sent  the  money  to  them  in  his  lifetime,  and  that  they  will 
have  the  right  to  spend  it  in  this  manner  if  sent  them  by  his  executors 
as  directed  by  his  will." 

The  residuary  legatees  appealed,  and  the  full  court  varied  the  de- 
cision of  the  first  court  by  holding  that  the  bequest  of  money  was  in- 
valid, and,  the  residuary  legatees  consenting,  that  the  bequests  of 
chattels  were  valid.  The  reasons  of  the  three  learned  judges  are  in 
substance  identical.  They  consider  that  as  the  ilO,000.  is  given  for  the 
purchase  of  land  in  England  the  case  is  the  same  as  if  the  testator  had 
actually  devised  land  of  his  own  in  England,  and  they  argue,  justly 
enough,  that  nobody  can  so  operate  on  English  land. 

From  their  order,  holding  the  bequest  of  money  invalid,  the  present 
appeal  is  brought;  and  their  Lordships  have  to  consider  whether  it 
is  right.  Of  course,  there  is  no  doubt  of  the  competency  of  the  Eng- 
lish legislature  to  forbid  such  gifts.  The  question  is  whether  it  has 
done  so.  It  would  seem  that  this  is  the  first  occasion  on  which  such  a 
question  has  come  into  court  for  decision. 

It  appears  to  their  Lordships  that  the  arguments  relied  on  by  the 
full  court,  and  by  the  respondents'  counsel  at  this  bar,  err  in  exag- 


Ch.    4)  INHERITANCE.  661 

gerating  the  amount  of  prohibition  imposed  by  the  English  statutes, 
and  in  ascribing  to  it  a  more  absoKite  effect  than  it  really  has.  The 
Attorney  General  indeed,  in  his  argument  for  the  residuary  legatees, 
insisted  on  the  title  of  the  Act  of  9  Geo.  II,  c.  36,  passed  in  the  year 
1736 :  "An  act  to  restrain  the  disposition  of  lands,  whereby  the  same 
become  unalienable."  That  title  correctly  expresses  the  object  of  the 
act;  but  it  is  manifest  from  the  preamble  and  the  operative  parts  of 
the  act  that  it  does  not  purport  to  restrain  every  such  disposition,  nor 
does  the  title  say  that  it  does.  If  there  were  an  absolute  prohibition 
of  all  gifts  of  land  for  charitable  uses,  Mr.  Beaney's  gift  could  not 
take  eft'ect.  But  as  in  fact  the  English  statutes  leave  all  persons  as 
free  as  they  were  by  common  law  to  give  or  to  receive  any  amount 
of  land  for  those  purposes,  provided  only  that  they  observe  the  posi- 
tive rules  prescribed  for  them,  the  question  in  each  case  is  whether 
the  mode  of  acquiring  land  is  a  lawful  or  a  forbidden  one. 

The  statute  which  governs  this  question  was  passed  in  the  year  1888 
(51  &  52  Vict.  c.  42),  and,  according  to  a  recent  practice,  it  has  no 
preamble  to  give  the  key  to  its  policy.  But  it  is  mainly  an  act  of  con- 
solidation ;  if  it  effects  any  alteration  in  the  previous  law,  the  differ- 
ence does  not  concern  the  question  now  to  be  decided ;  and  it  must  be 
taken  that  its  provisions  rest  upon  precisely  the  same  policy  as  those 
of  St.  9  Geo.  II,  c.  36. 

The  preamble  of  that  statute  refers  to  the  older  statutes  passed  to 
restrain  the  mischiefs  of  gifts  in  mortmain.  Then  it  proceeds:  "Nev- 
ertheless this  publick  mischief  has  of  late  greatly  increased  by  many 
large  and  improvident  alienations  or  dispositions  made  by  languish- 
ing or  dying  persons,  or  by  other  persons,  to  uses  called  charitable 
uses,  to  take  place  after  their  deaths,  to  the  disherison  of  their  lawful 
heirs ;  for  remedy  whereof  be  it  enacted."  This,  then,  was  the  mis- 
chief which  the  Legislature  desired  to  abate :  the  increase  of  land  held 
in  mortmain  by  gifts  which  may  for  brevity,  and  somewhat  loosely, 
be  termed  deathbed  gifts.  The  mode  taken  to  restrain  this  mischief 
was  to  enact  that  no  land,  nor  any  money  to  be  laid  out  in  the  pur- 
chase of  land,  should  be  given  to  any  person  for  the  benefit  of  any 
charitable  use,  unless  the  gift  be  made  by  deed  executed  twelve  cal- 
endar months,  at  least  before  the  death  of  the  donor,  and  enrolled  in 
Chancery  within  six  calendar  months  of  its  execution,  and  unless  the 
gift  be  made  to  take  immediate  effect.  Another  section  extends  the 
prohibition  to  charges  affecting  land,  which  is  a  large  class — at  that 
date  a  much  larger  relative  class  than  now — of  personal  estate;  and 
it  declares  that  the  prohibited  gifts  shall  be  absolutely  null  and  void. 
Therefore,  in  all  cases  of  wills  to  which  the  statute  applies,  such  gifts 
are  prohibited  by  its  express  terms. 

It  is  expressly  enacted  that  the  statute  shall  not  extend  to  the  grant 
of  any  estate  in  Scotland.  After  a  time  came  the  question  whether  it 
extends  to  the  colonies,  and  that  question  was  settled  in  the  negative 
in  the  case  of  Attorney  General  v.  Stewart,  2  Mer.  143,  decided  by 


662  PARTICULAR  SUBJECTS.  (Part  2 

Sir  William  Grant  in  the  year  1817.  He  considered  that  both  the 
mischief  struck  at  by  the  act,  and  the  methods  prescribed  for  lawful 
gifts,  were  of  a  local  character  peculiar  to  England.  Therefore,  he 
held  that  the  act  did  not  extend  to  Grenada,  though  it  is  in  general 
terms,  and  though  the  laws  of  England  had  been  extended  in  general 
terms  to  the  island  when  first  ceded  in  1763,  and  again  when  recovered 
in  1784.  That  opinion  has  ever  since  prevailed,  and  in  the  case  of  the 
Gilchrist  foundation  (Whicker  v.  Hume,  7  H.  L.  Rep.  124),  it  was 
applied  to  a  gift  of  land  in  New  South  Wales. 

In  that  state  of  the  law  the  present  act  of  1888  was  passed.  By 
section  4,  subsec.  1,  it  is  enacted  thus : 

"Subject  to  the  savings  and  exceptions  contained  in  this  act,  every 
assurance  of  land  to  or  for  the  benefit  of  any  charitable  uses,  and  every 
assurance  of  personal  estate  to  be  laid  out  in  the  purchase  of  land  to 
or  for  the  benefit  of  any  charitable  uses,  shall  be  made  in  accordance 
with  the  requirements  of  this  act,  and  unless  so  made  shall  be  void." 

The  requirements  of  the  act  are  substantially  those  of  the  act  of 
1736.  If  the  assurance  is  of  personal  estate  not  being  stock  in  the 
public  funds,  it  must  be  made  by  deed  enrolled  within  six  months  of  the 
execution,  and,  if  it  is  not  made  for  full  valuable  consideration,  ex- 
ecuted twelve  months  before  the  death  of  the  assurors.  By  the  in- 
terpretation clause  the  term  "assurance"  includes  a  will.  This  act 
therefore,  subject  to  some  special  exemptions,  prohibits  "death-bed" 
gifts  as  strictly  as  does  the  earlier  act.  But  it  is  impossible  to  sup- 
pose that  the  English  legislature  intended  to  affect  a  will  subject  to 
the  law  of  Victoria.  All  the  reasons  against  such  a  construction  which 
were  applied  to  the  earlier  enactment  apply  to  the  later  one. 

It  is  expressly  declared  that  the  act  does  not  extend  to  Scotland  or 
Ireland.  To  declare  that  a  bequest  made  by  a  colonial  will  shall  be 
void  on  the  ground  that  it  contravenes  the  local  law  of  England  may 
not  be  beyond  the  competence  of  the  imperial  Parliament,  but  is  quite 
beyond  its  ordinary  scope,  and  such  an  intention  ought  not  to  be  im- 
puted to  it  without  very  clear  grounds.  Seeing,  indeed,  that  the  re- 
pealed and  consolidated  statutes  did  not  apply  to  the  colonies,  and 
that  Scotland  and  Ireland  are  expressly  excepted  from  the  new  stat- 
ute, it  is  impossible  without  express  words  to  suppose  that  there  was 
any  intention  of  affecting  the  colonies  by  the  new  statute.  Moreover, 
Sir  Wm.  Grant's  other  reasons  apply  exactly  to  the  present  question. 
It  cannot  have  been  intended  that  methods  of  a  local  character  pre- 
scribed for  making  a  lawful  gift  should  be  adopted  in  a  distant  colony, 
or,  if  not,  that  the  gift  should  be  invalid. 

Indeed,  the  case  for  the  residuary  legatees  is  not  rested  on  any  such 
broad  ground  as  this.  The  courts  below  are  agreed  that  the  Victorian 
testator  is  quite  free  to  make  such  a  gift  as  he  has  made ;  nor  has  the 
contrary  been  contended  here.  But  for  that  conclusion  the  word  "as- 
surance" in  the  act  must  receive  the  qualification  that  it  means  some- 
thing which  is  governed  by  English  law. 


Ch.    4)  INHERITANCE.  663 

Of  course  it  is  a  different  thing  to  say  that  English  law  must  decide 
whether  English  land  can  be  bought  with  money  coming  from  such 
a  source  as  a  foreign  will ;  and  that,  if  it  decides  in  the  negative,  the 
bequest  must  fail,  not  because  it  is  illegal,  but  because  it  is  impossible 
of  execution.  The  Attorney  General  stated  broadly  that  the  prohibi- 
tions of  the  statutes  of  mortmain  are  an  integral  part  of  the  English 
law  of  real  property.  So  they  are;  but  the  question  is  how  far  they 
operate.  The  suggestion  is  that  they  operate  to  invalidate  gifts  of 
money  coupled  with  an  obligation  to  lay  them  out  in  land,  if  they 
have  their  origin  in  a  will,  though  a  perfectly  valid  will.  Their  Lord- 
ships cannot  find  such  a  prohibition  in  the  act.  They  have  reached  the 
conclusion  that  this  will  is  not  invalidated  by  subsection  1.  At  what 
point,  then,  of  the  transactions  does  the  English  law  come  in?  Not 
between  the  Victorian  testator  and  his  Victorian  executor.  In  their 
Lordships'  view  the  English  law  will  operate  whenever  a  purchase 
of  land  for  the  charitable  uses  is  effected,  but  no  earlier.  The  as- 
surance of  that  land  must  be  made  in  accordance  with  the  provisions 
of  the  act.  Anybody  may  give  money  for  such  a  purpose  in  the  per- 
mitted mode.  The  testator  might  himself  have  bought  land  in  Canter- 
bury and  have  devoted  it  to  charitable  uses  quite  lawfully.  What  he 
might  do  himself  he  might  do  through  trustees,  by  giving  money  to 
trustees  for  the  purpose  of  acquiring  land  in  a  lawful  way.  Is  there 
anything  to  prevent  him  from  ordering  his  executors  to  do  the  same 
thing?  The  answer  is  that  his  will  is  not  affected  by  English  law. 
It  is  a  valid  will  binding  on  his  executors ;  and  a  Victorian  court  of 
justice  should  direct  them  to  perform  their  obligation. 

It  has  been  contended  very  earnestly  that  the  point  is  settled  by  the 
decision  in  Attorney  General  v.  Mill,  2  Dow.  &  CI.  393.  In  that  case 
the  testator  was  a  native  of  Montrose.  He  spent  many  years  in  the 
island  of  Cariacou,  where  he  ov/ned  land  and  amassed  a  large  fortune. 
He  returned  to  Montrose,  and  stayed  there  about  five  years.  Then 
he  came  to  England,  and  resided  first  in  London  and  afterwards  in 
Bath,  up  to  his  death  in  1805,  fourteen  years  afterwards.  In  1791 
he  executed  a  will  and  a  deed,  by  which  he  gave  money  to  be  invested 
in  the  purchase  of  land,  ordering  the  income  to  be  paid  to  certain 
Scottish  trustees  for  the  benefit  of  indigent  ladies  in  Montrose.  His 
will,  with  four  codicils,  all  in  English  form,  was  proved  in  England. 
In  his  will  and  contemporaneous  deed  he  described  himself  as  of  the 
island  of  Cariacou,  now  residing  in  Marylebone.  His  codicils,  it  was 
stated  at  the  bar,  contained  similar  descriptions.  His  foreign  assets 
were  transmitted  to  England  and  were  administered  under  the  direc- 
tion of  the  Court  of  Chancery  and  were  the  subject  of  a  decree  which 
paid  no  regard  to  the  charitable  gift.  Subsequently  an  information 
was  filed  by  the  Attorney  General  for  the  establishment  of  the  charity 
by  purchase  of  land  in  Scotland.  It  was  held  by  Lord  Lyndhurst, 
first  in  Chancery  and  afterwards  in  the  House  of  Lords,  that  the  tes- 


664  PARTICULAR  SUBJECTS.  (Part  2 

tator  must  be  taken  to  have  directed  the  purchase  of  land  in  England, 
and  that  his  gift  contravened  the  mortmain  laws  and  was  void. 

It  is  now  argued  that  the  testator  was  a  domiciled  Scotsman,  and 
that  the  case  decides  that  a  bequest  of  money  in  a  Scottish  will  di- 
recting the  purchase  of  land  in  England  for  a  charity  is  a  void  bequest. 
But  the  assumption  that  the  testator  had  a  Scottish  domicile  is  not 
warranted  by  anything  to  be  found  in  the  reports.  In  the  meagre 
history  of  his  life  there  is  much  to  suggest  arguments  for  an  English 
domicile,  and  the  counsel  for  the  Attorney  General  who  was  contend- 
ing for  the  validity  of  the  gift  did  not  suggest  any  other  domicile. 
The  word  "domicile"  occurs  only  twice  in  the  reports  of  the  case.  In 
one  of  them  (2  Dow.  &  CI.  394)  the  reporter  uses  a  casual  expression 
to  the  effect  that  on  leaving  Cariacou  the  testator  resumed  his  dom- 
icile in  Montrose;  an  expression  which  Lord  St.  Leonards,  writing 
many  years  afterwards,  repeated.  But  the  Scottish  origin  of  the  tes- 
tator, and  his  connection  with  Montrose,  were  only  used  as  arguments 
to  shew  that  he  contemplated  the  purchase  of  land  in  Scotland — a  con- 
clusion which  one  of  the  reasons  appended  to  the  appellant's  case  urged 
the  House  to  adopt  "even  if  he  were  domiciled  in  England."  For  some 
reason,  doubtless  a  sufficient  one,  it  was  the  common  ground  of  argu- 
ment that  the  will  was  governed  from  first  to  last  by  English  law. 
There  is  not  a  trace  in  the  reported  statements,  arguments  or  judg- 
ments that  anybody  asked  what  would  be  the  effect  of  a  will  not  gov- 
erned by  English  law,  which  is  the  question  now  propounded  to  their 
Lordships, 

It  is  true  that  Story,  J.  (Conflict  of  Laws,  §  446)  and  Mr.  West- 
lake  (Private  International  Law,  §  165)  both  treat  the  decision  as  cov- 
ering the  case  of  a  foreign  will.  But  on  examining  the  case  that  ap- 
pears to  their  Lordships  to  be  a  misapprehension  of  the  point  really 
decided.  So  far  as  they  know,  the  present  question  is  wholly  untouched 
by  authority. 

The  Attorney  General  dwelt  on  the  amount  of  land  which  might 
be  brought  into  mortmain  if  such  bequests  as  these  were  allowed  to 
take  effect.  Such  considerations  can  hardly  influence  the  construc- 
tion of  a  statute  except  so  far  as  they  may  appear  to  have  been  present 
to  the  minds  of  its  framers.  Their  Lordships  can  hardly  suppose 
that  any  one  would  feel  alarm  at  the  idea  of  foreigners  giving  large 
sums  of  money  to  English  purposes;  and,  if  it  be  true  that  this  is  the 
first  case  of  its  kind  to  come  into  court,  the  experience  of  a  century 
and  a  half  tends  to  prove  the  futility  of  any  such  alarm.  But,  how- 
ever that  may  be,  their  Lordships  must  construe  the  words  of  the 
statute  according  to  their  plain  meaning,  and  leave  it  to  the  Legisla- 
ture to  enact  further  prohibitions,  if  found  expedient. 

The  result  is  that  their  Lordships  will  humbly  advise  Her  Majesty 
to  discharge  the  order  of  the  full  court,  except  so  far  as  it  deals  with 
the  specific  chattels  and  with  costs.  This  will  in  effect  restore  the 
judgment  of  Mr.  Justice  A'Beckett.     It  has  seemed  right  to  both  the 


Ch.    4)  INHERITANCE.  665 

courts  that  the  costs  of  all  parties  to  the  Htigation  should  be  paid  out 
of  the  testator's  estate,  those  of  the  plaintiffs,  who  are  the  executors, 
being  taxed  as  between  solicitor  and  client.  Their  Lordships  have 
been  asked  to  follow  the  same  course  in  disposing  of  the  costs  of  this 
appeal;  and  the  residuary  legatees  raise  no  objection.  Their  Lord- 
ships will  order  accordingly. 


DAMMERT  v.  OSBORN. 

(Court  of  Appeals  of  New  York,  1893.     140  N.  Y.  30,  35  N.  E.  407.) 

O'Brien,  J.^°  Jose  Sevilla,  residing  and  domiciled  at  Lima,  in  the 
republic  of  Peru,  died  there  on  the  9th  of  December,  1886,  having 
made  and  published  his  last  will  and  testament,  bearing  date  July  2, 
1885,  by  which  he  disposed  of  a  large  estate,  consisting  mostly  of  per- 
sonal property,  a  considerable  portion  of  which,  or  the  evidences  there- 
of, was  at  the  time  of  his  death  actually  within  this  state.  The  will 
was  duly  proved  and  established  under  the  usual  and  proper  judicial 
proceedings  in  the  courts  of  the  country  where  the  testator  was  domi- 
ciled, having  by  law  jurisdiction  in  such  cases,  and  executors  appointed 
pursuant  to  its  provisions.  These  executors,  residing  in  Peru,  together 
with  the  appointed  heirs  and  residuary  legatees,  caused  the  will,  or  a 
copy  thereof,  to  be  recorded  in  the  office  of  the  surrogate  of  New 
York;  and  thereupon,  with  their  assent  and  upon  their  motion,  the 
plaintiffs  were  appointed  ancillary  executors  in  this  state,  and,  having 
qualified,  and  entered  upon  the  duties  of  the  trust,  took  into  their  pos- 
session the  personal  estate  here.  The  single  provision  of  the  will  out 
of  which  the  questions  arise  which  are  involved  in  this  appeal  is  a 
charitable  bequest  for  the  education  of  poor  female  children  in  the 
city  of  New  York.  The  several  clauses  by  means  of  which  the  testa- 
tor sought  to  accomplish  this  purpose  are  quite  elaborate  and  formal, 
and  their  substance  and  effect  will  be  sufficient  to  give  a  clear  view 
of  the  general  purpose,  as  well  as  the  mode  in  which  it  was  to  be 
executed:  The  testator  states  in  the  will  that  in  the  previous  year, 
1881,  he  executed  a  will  by  which  he  left  the  larger  part  of  his  fortune 
to  found  an  institution  in  New  York  under  the  name  of  the  "Sevilla 
Home  for  Children,"  and  in  which  he  formulated  the  details  of  sup- 
port and  management;  but  in  view  of  the  unfortunate  situation  of 
his  relatives,  and  various  persons  dear  to  him,  he  deemed  it  necessary 
to  reconcile  this  desire  with  his  duties  to  his  family.  He  then  pro- 
ceeds to  declare  that  it  is  his  will  that  there  be  established  in  the  city 
of  New-  York,  and  permanently  maintained,  an  institution  to  be  known 
as  the  "Sevilla  Home  for  Children,"  to  be  managed  by  his  executors 
and  a  board  of  philanthropic  managers,  and  devoted  to  the  education 

20A  part  of  the  opinion  has  been  omitted. 


^ 


666  PARTICULAR  SUBJECTS.  (Part  2 

of  poor  female  children.  He  directed  that  in  all  matters  relating  to 
the  institution  a  prudent  economy  be  observed;  that  the  buildings  be 
adequate  to  the  end  to  be  attained,  constructed  to  receive  from  50  to 
100  children,  and  the  teachers  required ;  the  land  to  be  purchased 
and  buildings  erected  at  moderate  prices.  The  managers  were  em- 
powered to  make  rules  for  the  government  of  the  institution  in  the 
best  manner,  not  forgetting  the  following  conditions:  (1)  Only  very 
poor  children,  from  5  to  10  years  of  age,  fit  for  apprenticeship,  and 
free  from  ailments,  were  to  be  admitted,  to  remain  in  the  home  until 
they  attained  the  age  of  16.  (2)  The  food  and  clothing  to  be  econom- 
ical and  suitable,  and  the  latter  to  be  of  uniform  pattern  and  color  for 
all.  (3)  The  instruction  to  be  primary,  and  upon  the  basis  of  a  moral 
education,  with  directions  as  to  the  practical  branches  to  be  taught. 
(4)  Day  scholars  to  be  admitted,  providing  they  did  not  occasion  ex- 
pense; to  be  kept  apart  from  the  boarders,  in  order  to  preserve  the 
moral  tone.  He  then  gives  directions  for  investing  any  money  earned 
by  the  children,  whenever  that  was  possible,  one-half  to  be  paid  to 
them  at  16,  and  the  other  half  devoted  to  the  support  of  the  school. 
The  number  of  children  to  be  always  subordinate  to  the  resources; 
preference  to  be  given  to  natives  of  Peru,  upon  the  recommendation 
of  Peruvian  consuls  at  New  York,  or  the  place  where  application  was 
made.  The  fitness  of  the  children  being  proved,  the  managers  could 
not,  within  the  limit  as  to  numbers,  refuse  them  admission,  for  any 
motive  whatever.  The  board  of  philanthropic  managers  to  be  com- 
posed of  seven  prominent  citizens  of  the  city  of  New  York,  to  be  se- 
lected by  the  surrogate  from  a  list  which  the  testator  named.  For  the 
purpose  of  founding  and  endowing  the  institution,  $500,000  was  be- 
queathed in  the  securities,  constituting  his  estate,  at  par,  to  be  de- 
livered to  the  board  by  the  executors.  The  board  was  directed  to 
postpone  the  purchase  of  land  and  construction  of  buildings  for  two 
years  after  delivery  of  the  securities,  in  order  that  the  school  should 
be  founded  with  the  accumulated  interest  in  that  period,  without  re- 
ducing the  principal  sum  for  that  purpose.  The  executors  and  ap- 
pointed heirs  were  directed  to  transmit  to  the  municipality  of  New 
York  a  copy  of  the  clauses  of  the  will  relating  to  the  institution,  and 
the  testator  requested  the  municipal  authorities  to  watch  over  and 
care  for  the  fulfillment  and  performance  of  the  will  in  this  regard. 
The  trustees  were  appointed  in  conformity  with  the  terms  of  the 
will,  and  accepted  the  trust,  and  have  been  made  defendants  in  this 
action.  The  plaintiffs,  as  ancillary  executors,  have  possession  of  the 
securities  devoted  by  the  will  to  the  founding  of  the  home,  and  hold 
the  fund  bequeathed  subject  to  the  order  and  direction  of  the  court. 

The  trustees,  or  "philanthropic  managers,"  as  they  are  designated 
by  the  will,  applied  to  the  Legislature  of  this  state  for  incorporation, 
and  upon  this  application  chapter  17,  p.  14,  of  the  Laws  of  1889  was 
enacted,  by  which  they,  and  such  other  persons  as  they  might  asso- 
ciate with  themselves  in  accordance  with  the  provisions  of  the  will, 


Ch.    4)  INHERITANCE.  6G7 

were  created  a  body  corporate  and  politic  under  the  name  and  title 
of  the  Sevilla  Home  for  Children.  The  incorporators  were,  by  name, 
declared  to  be  the  permanent  trustees  of  the  corporation,  in  accord- 
ance with  the  will  of  the  testator ;  and  in  case  of  a  vacancy  by  death, 
resignation,  or  otherwise,  the  survivors  were  empowered  to  fill  it  in 
accordance  with  the  directions  of  the  will,  as  near  as  may  be,  so  tl^at  the 
number  should  be  kept  at  seven.  The  trustees  were  given  full  power 
to  control  and  manage  the  corporation,  and  for  that  purpose  to  make 
by-laws,  and  appoint  such  agents  and  officers  as  might  be  deemed 
necessary,  and  to  fix  their  tenure  of  office  as  well  as  their  own.  The 
corporation  was  declared  to  possess  all  the  powers,  and,  except  as 
otherwise  provided  by  the  act,  to  be  subject  to  the  provisions  of  the 
Revised  Statutes.  It  was  expressly  empowered  and  directed  to  accept 
and  receive  the  gift  bequeathed  by  the  will  upon  the  terms  and  con- 
ditions there  expressed,  and  power  was  conferred  upon  it  to  enter 
into  any  obligation  in  order  to  secure  compliance  with  such  terms  and 
conditions.  In  addition  to  the  powers  conferred  by  law  upon  corpora- 
tions, it  was  declared  that  this  corporation  should  have  power  and 
capacity  to  establish  and  maintain  a  home  for  the  education  of  poor 
children  in  the  city  of  New  York  as  provided  in  the  will,  and  for  that 
purpose  to  demand  and  receive  the  fund  bequeathed  by  the  will  for 
that  purpose,  and  to  hold,  manage,  and  dispose  of  the  same  in  such 
manner  as  might  be  best  calculated  to  carry  out  the  objects  and  pur- 
poses indicated  by  the  testator.  The  trustees  accepted  the  trust  under 
the  act  of  incorporation,  and  organized  under  it.  The  will  contains 
various  other  large  bequests  to  relatives  and  friends  and  for  charitable 
purposes,  the  validity  of  which  is  not  involved  in  this  action,  and, 
so  far  as  appears,  they  are  not  questioned  by  any  one.  In  the  thirty- 
sixth  clause  the  persons  are  designated  by  the  testator  who  were  em- 
powered to  administer  the  estate  and  carry  out  the  will,  and,  in  what 
seems  to  be  the  language  of  Peruvian  law,  they  are  called  "executors," 
and  appointed  as  testamentary  heirs;  and  they  were,  by  the  terms  of 
the  will,  to  co-operate  with  the  trustees  in  founding  the  institution  and 
administering  the  gift.  The  plaintiits,  in  their  complaint,  state  all  the 
facts,  and  ask  for  the  judgment  of  the  court  with  reference  to  the 
disposition  of  the  fund  in  their  hands.  The  defendants  are  the  trus- 
tees named  in  the  will,  and  the  corporate  body  created  upon  their  ap- 
plication, and  the  executors,  appointed  heirs,  and  residuary  legatees 
named  by  the  testator.  It  appears  that  they  were  all  served,  but  none 
of  them  answered,  or  made  any  claim  to  the  fund,  except  the  corpo- 
ration known  as  the  Sevilla  Home  for  Children,  the  trustees,  and  the 
Sociedad  de  Beneficiencia  de  Lima,  one  of  the  residuary  legatees. 
The  latter  is  the  only  party  to  the  action  who  really  disputes  the  right 
of  the  corporation  or  the  trustees  to  the  fund. 

[The  will  directed  that  said  Sociedad  should  receive  the  various 
legacies  of  public  interest,  and  should  deliver  them  over  to  the  re- 
spective institutions  in  the  will  named,  and  that  if  any  such  institu- 


668  PARTICULAR  SUBJECTS.  (Part  2' 

tions  should  decline  to  receive  the  same,  the  legacy  to  it  should  pass  to^ 
said  Sociedad.] 

The  learned  judge  before  whom  the  cause  was  tried  at  the  Special 
Term  held  that  the  bequest  for  the  Sevilla  Home  was  void,  as  con- 
travening the  statute  of  this  state  against  perpetuities,  and  for  other 
reasons,  and  that  none  of  the  defendants  were  entitled  to  receive  the 
gift;  and  he  directed  that  the  plaintiffs  account  for  the  fund  to  th& 
executors  and  appointed  heirs  in  Peru,  and,  to  that  end,  that  the  fund 
be  remitted  to  that  country,  without  determining  to  whom  the  benefi- 
cial interest  in  the  fund  belonged.  The  General  Term  has  affirmed 
the  judgment,  and  the  Sevilla  Home  and  its  'individual  trustees  have 
appealed  to  this  court. 

At  every  stage  of  the  inquiry  pressed  upon  us  by  this  appeal,  it  is 
important  to  keep  in  view  a  fundamental  fact  established  by  uncon- 
tradicted evidence  at  the  trial,  and  conceded  upon  the  argument,  and 
that  is  that  the  bequest  to  the  Sevilla  Home  was  perfectly  valid  by  the 
law  of  Peru,  the  domicile  of  the  testator,  which  governed  his  personal 
property,  wherever  it  was  at  the  time  of  his  death.  The  validity  of 
the  gift  by  the  law  of  the  domicile  necessarily  involves  the  conclusion 
that  it  is  not  afifected,  under  that  law,  by  the  fact  that  at  the  time  of 
the  testator's  death  there  was  no  trustee  competent  to  take,  or  that  the 
estate  did  not  vest  within  a  period  measured  by  lives,  or  by  the  gen- 
eral and  indefinite  nature  of  the  trust,  nor  any  other  local  rule  that 
would  defeat  the  intention  of  the  testator  in  case  it  had  been  a  domes- 
tic will.  The  general  principle  that  a  disposition  of  personal  property, 
valid  at  the  domicile  of  the  owner,  is  valid  everywhere,  is  of  universal 
application.  It  had  its  origin  in  that  international  comity  which  was 
one  of  the  first  fruits  of  civilization;  and  in  this  age,  when  business 
intercourse  and  the  process  of  accumulating  property  take  but  little 
notice  of  boundary  lines,  the  practical  wisdom  and  justice  of  the  rule 
is  more  apparent  than  ever.  It  would  be  contrary  to  the  principles 
of  common  justice  and  right  upon  which  the  rule  is  founded  to  per- 
mit a  testamentary  disposition  of  personal  property,  valid  by  the  law 
of  the  domicile,  to  be  annulled  or  questioned  in  every  other  country 
where  jurisdiction  was  obtained  over  the  property  disposed  of,  or  the 
parties  claiming  it,  except  for  the  gravest  reasons.  There  are,  no 
doubt,  some  exceptions  to  the  rule,  founded  upon  considerations  of 
public  policy  and  necessity.  Foreign  contracts  or  dispositions  of  prop- 
erty, which,  if  carried  out,  would  endanger  the  public  morals  or  the 
public  safety,  or  undermine  the  political  or  social  fabric,  or  subvert  the 
administration  of  justice,  or  have  other  evil  tendencies,  are  not  within 
the  rule,  as  the  right  and  duty  of  self  preservation  is  higher  and  strong- 
er in  every  community  than  any  obligation  founded  in  comity.  But 
the  object  of  this  bequest,  instead  of  tending  to  such  results,  was 
highly  laudable  and  commendable,  and  certainly  there  is  no  public 
policy  that  forbids  its  execution.  The  law  allows,  and  in  every  proper 
way  encourages,  such  gifts,  and  sustains  them,  when  capable  of  exe- 


Ch.    4)  INHERITANCE.  669 

cution,  and,  even  when  they  are  not,  it  does  not  hold  them  void,  if 
vahd  under  the  law  of  the  domicile;  and  it  is  only  in  cases  where 
there  is  no  adequate  legal  regulation  for  administering  or  carrying 
them  into  effect  that  the  property  will  be  remitted  to  the  government 
of  the  domicile  for  administration.  None  of  the  parties  in  this  case 
have  acquired  any  title  to  the  fund  in  question  that  they  are  not  given 
by  the  law  of  Peru.  Our  courts  may  in  certain  cases,  decline  to  ad- 
minister the  gift,  and  remit  the  property  to  the  principal  seat  of  admin- 
istration; but  they  cannot  divest  the  title  of  one,  or  transfer  it  to  anoth- 
er, contrary  to  the  law  of  the  domicile.  That  law  is  part  of  the  disposi- 
tion, and  the  foundation  of  all  title  under  it,  and  it  cannot  be  disre- 
garded, to  the  prejudice  of  one  and  the  benefit  of  another,  any  more 
than  the  other  parts  of  the  instrument.  There  is  no  law  that  forbids 
gifts  to  charity  here  by  testators  in  other  countries,  or  that  requires 
us  to  reject  the  gift  unless  it  is  made,  in  all  respects,  in  conformity 
with  our  local  law.  There  is  no  public  poHcy  on  that  subject,  except 
what  is  to  be  found  in  the  language  of  the  statute,  and  that  provides 
that  "the  absolute  ownership  of  personal  property  shall  not  be  sus- 
pended by  any  limitation  or  condition  whatever,  for  a  longer  period 
than  during  the  continuance  and  until  the  termination  of  not  more  than 
two  lives  in  being  at  the  date  of  the  instrument  containing  such  limita- 
tion or  condition;  or,  if  such  instrument  be  a  will,  for  not  more  than 
two  lives  in  being  at  the  death  of  the  testator."  2  Rev.  St.  (6th  Ed.) 
p.  1167,  pt.  2,  c.  4,  tit.  4,  §  1. 

When  that  statute  was  passed,  it  was  not  within  the  legislative  pur- 
pose to  interdict  dispositions  made  in  other  countries  to  take  eft'ect 
here.  There  is  nothing  in  the  language  used  that  indicates  such  a 
purpose.  There  are  other  statutes  that  invalidate  testamentary  gifts 
to  certain  corporations  unless  made  within  a  certain  time  before  death, 
where  the  testator  had  wife,  children,  or  parents.  The  purpose  of 
these  statutes  is  evident.  They  were  intended  to  prevent  improvident 
and  hasty  bequests,  to  the  prejudice  or  neglect  of  those  natural  ob- 
ligations which  the  law  also  imposes  upon  the  citizen.  But  these  re- 
straints applied  to  members  of  the  political  community  from  which 
the  law  emanated,  and  not  to  persons  in  other  countries,  where  no 
such  restrictions  existed,  and  who  desired  to  give  according  to  their 
own  laws.  Bequests  .by  such  persons  to  those  corporations,  without 
regarding  the  statutes  referred  to,  would  be  good,  if  valid  at  the  domi- 
ciie  of  the  testator.  Hollis  v.  Drew  Theo.  Seminary,  95  N.  Y.  171. 
It  is  no  part  of  our  public  policy  to  condemn  such  gifts  to  charitable 
or  benevolent  corporations  here.  Our  law  permits  the  citizens  or  sub- 
jects of  other  countries  to  dispense  charity  here  in  such  measure  as 
they  wish,  and  according  to  such  methods  as  their  own  laws  prescribe. 
The  policy  that  dictated  our  statutes  against  perpetuities  and  accumu- 
lations did  not  anticipate  any  danger  from  abroad,  and  our  recent  de- 
cisions are  to  the  effect  that  thev  are  local  in  their  general  scope  and 
effect.    Cross  v.  Trust  Co.,  131  N.  Y.  330,  30  N.  E.  125,  15  L.  R.  A. 


670  PARTICULAR  SUBJECTS.  (Part  2 

606,  27  Am.  St.  Rep.  597;   Hope  v.  Brewer,  136  N.  Y.  126,  32  N.  E. 
558,  18  L.  R.  A.  458. 

In  the  first  case  cited,  we  held  that  a  testamentary  disposition  of 
personal  property  in  trust,  by  a  person  domiciled  in  another  state, 
valid  by  the  law  of  the  domicile,  though  in  some  respects  contrary  to 
our  statute,  was  not  void;  and  we  refused  to  annul  the  will  of  the 
testator,  that  had  taken  effect  and  been  acted  upon  here  for  many 
years.  In  the  second  case,  we  refused  to  interfere  with  a  testamentary 
disposition  in  a  domestic  will  containing  a  trust  for  a  charity  in  a 
foreign  country,  where  it  was  valid  and  capable  of  being  executed  and 
enforced,  although,  perhaps,  under  our  law,  the  beneficiaries  were  not 
sufficiently  defined,  and  it  may  have  been  open  to  other  objections. 
The  trend  of  these  cases  is  unquestionably  towards  the  conclusion 
that  our  statutes  apply  to  domestic  wills,  that  by  their  provisions  are 
to  be  executed  here.  An  accumulation  to  take  effect  in  another  coun- 
try, or  a  bequest  made  there  to  take  effect  here,  was  not  within  the 
intention  of  the  Legislature  when  these  statutes  were  framed.  There 
is,  however,  this  clear  distinction  between  the  cases  cited  and  the  one 
at  bar :  In  the  former,  we  were  not  asked  to  aid  in  any  way  the  execu- 
tion of  the  will  or  the  administration  of  the  trust,  but  to  declare  it 
void  at  the  suit  of  heirs  or  next  of  kin.  The  parties  who  stood  upon 
the  dispositions  of  the  will  simply  asked  us  to  allow  them  to  execute 
the  testator's  purpose  with  respect  to  his  property,  and  to  manage 
their  own  business  in  their  own  way.  But  in  this  case  we  are  asked, 
virtually,  to  put  the  Sevilla  Home  in  possession  and  control  of  the 
fund,  and  thus  give  active  aid  and  assistance  in  the  enforcement  of  a 
trust  which,  in  a  domestic  will,  would  doubtless  be  void,  and  therein 
is  the  real  difficulty  which  the  situation  presents.  The  objection  to 
this  relief,  which,  under  ordinary  circumstances,  might  be  formidable, 
has  been,  we  think,  greatly  obviated,  if  not  entirely  removed,  by  the 
legislation  which  has  been  enacted  since  the  death  of  the  testator. 
That  has  a  much  broader  scope  and  operation  than  the  mere  creation 
of  a  corporate  body.  It  is  an  expression  of  the  will  of  the  supreme 
legislative  power  that  the  gift  in  question  should  be  received  and  ad- 
ministered in  the  manner  and  for  the  objects  designated  in  the  will,  as 
near  as  may  be ;  and  thus  every  existing  legal  obstacle  to  the  execu- 
tion of  the  testator's  purpose  must  be  deemed  ta  have  been  suspended, 
or  pro  tanto  repealed.  The  Legislature,  in  effect,  said  that,  notwith- 
standing the  indefinite  nature  of  the  trust,  if  it  w^as  indefinite,  or  the 
circumstance  that  the  testator  did  not  appoint  a  trustee  competent 
to  take,  or  that  the  absolute  ownership  was  suspended  for  a  period 
not  measured  by  lives,  this  gift  shall  take  effect,  according  to  the  in- 
tention of  the  donor,  and  be  adminstered  by  a  corporate  body  of  its 
own  creation.  The  Legislature  had  the  power  to  so  enact,  unless,  in 
the  mean  time,  the  title  or  beneficial  interest  had  vested  in  heirs,  next 
of  kin,  or  legatees;  and  as,  under  the  law  of  the  domicile,  it  did  not, 
the  power  of  the  Legislature  to  accept  a  gift  that  was  awaiting  a  com- 


Ch.    4)  INHERITANX'B.  G71 

petent  trustee  to  administer  it  cannot  well  be  doubted.  It  is  not  im- 
portant to  ascertain  or  decide  where  the  title  to  the  fund  was  lodged 
in  the  mean  time.  It  was  wherever  the  law  of  Peru  placed  it.  Wheth- 
er in  the  executors,  for  the  purpose  of  delivering  it  to  the  trustees, 
or  in  abeyance,  it  matters  not.  So  long  as  that  law  would  not  permit 
it  to  vest  in  any  other  person,  or  for  any  other  purpose,  no  property 
right  was  violated  by  the  legislation.  Had  the  title  vested  elsewhere 
in  the  mean  time,  in  consequence  of  the  invalidity  of  the  bequest,  or  for 
any  reason  of  course  that  title  could  not  be  disturbed  by  the  Legis- 
lature. But  by  force  of  the  law  of  the  domicile,  upon  the  facts  dis- 
closed by  the  record,  if  the  fund  should  be  remitted  to  the  executors 
in  Peru,  pursuant  to  the  judgment,  they  would,  in  the  discharge  of  the 
trust  imposed  upon  them  by  the  testator,  be  bound  to  pay  it  over  to 
the  Sevilla  Home  for  the  purpose  declared  in  the  will,  as  the  Legis- 
lature had,  subsequent  to  the  death  of  their  testator,  created  a  com- 
petent body  to  execute  that  purpose  without  affecting  any  private 
right.  The  necessity  or  expense  of  such  circumlocution  is  not  per- 
ceived. Generally,  whatever  the  law  will  permit  to  be  done  indirectly 
may  be  done  directly. 

There  is  another  and  more  recent  statute  that  has  some  application 
to  this  case,  as  it  is  the  last  expression  of  the  legislative  will  on  the 
subject,  and  discloses  what  our  public  policy  is  with  regard  to  such 
bequests.  By  chapter  701,  p.  1748,  of  the  Laws  of  1893,  entitled  "An 
act  to  regulate  gifts  for  charitable  purposes,"  it  is  enacted  that  no  such 
gift,  when  valid  in  other  respects  under  the  law  t)f  this  state,  shall  be 
deemed  invalid  by  reason  of  the  indefiniteness  or  uncertainty  of  the 
persons  designated  as  the  beneficiaries  in  the  instrument  creating  the 
same;  that  in  such  cases,  when  a  trustee  is  named,  the  title  shall  vest 
in  him,  and,  if  no  person  is  named  as  trustee,  then  the  title  shall  vest 
in  the  Supreme  Court,  and  in  all  cases  of  bequests  to  charitable  uses, 
where  the  beneficiaries  are  not  definitely  designated,  that  court  shall 
have  full  control,  and  it  shall  be  the  duty  of  the  Attorney  General  to 
enforce  the  trust,  and  represent  the  beneficiaries.  This  statute  in- 
dicates an  intention  on  the  part  of  the  Legislature  to  enforce  and  up- 
hold charitable  bequests  not  heretofore  recognized  as  valid,  and  it  may 
be  regarded  as  the  first  step  in  the  direction  of  modifying  that  body 
of  law  which  this  court  has  built  up  on  the  ruins  of  the  system  out- 
lined in  Williams  v.  Williams,  8  N.  Y.  525.  The  result  which  the 
Second  Division  of  this  court  was  constrained  to  reach  in  a  recent 
case  of  public  importance,  no  doubt,  had  some  influence  in  creating 
the  sentiment  which  is  embodied  in  the  law,  Tilden  v.  Green,  130 
N.  Y.  29,  28  N.  E.  880,  14  L.  R.  A.  33,  27  Am.  St.  Rep.  487. 

It  seems  to  be  assumed  on  the  part  of  the  respondents  that  these 
statutes  can  have  no  application  to  this  case,  inasmuch  as  they  were 
not  enacted  until  after  the  testator's  death.  That  would  be  so,  had  the 
property  vested  otherwise  than  for  the  purpose  of  founding  the  home ; 
but.  as  it  did  not  under  the  law  of  the  domicile,  it  could  not  under  the 


672  PARTICULAR  SUBJECTS.  (Part  2 

law  of  the  forum.  When  a  court  of  equity  obtains  jurisdiction,  and  all 
the  facts  are  before  it  by  supplemental  pleading,  as  they  are  here,  it 
may,  and  generally  does,  adapt  the  relief  to  the  situation  existing  at 
the  close  of  the  litigation.  Peck  v.  Goodberlett,  109  N.  Y.  181,  16  N. 
E.  350;  Madison  Ave.  Baptist  Church  v.  Oliver  St.  Baptist  Church, 
73  N.  Y.  83. 

The  case  turned  in  the  court  below  upon  views  of  public  policy  with 
respect  to  the  enforcement  of  the  donor's  will,  but  what  that  policy 
actually  is  should  be  determined  by  the  situation  existing  at  the  time 
the  court  is  required  to  make  its  decree  disposing  of  the  fund,  and 
the  statutes  referred  to  have  an  important  bearing  upon  that  question. 
*     *     * 

The  judgment  should  be  reversed,  and  final  judgment  directed  in 
favor  of  the  Sevilla  Home  for  Children,  with  costs  to  all  parties,  as 
awarded  by  the  court  below,  and  to  the  plaintiffs  in  this  court,  pay- 
able out  of  the  fund.    All  concur.    Judgment  accordingly. ^^ 


SECTION  3.— EXECUTION  OF  POWERS  IN  A  WILU 


In  re  PRICE. 
(Chancery  Division,  1900.    1  Ch.  Div.  442.  69  L.  J.  Ch.  225.) 

An  Englishwoman,  Elizabeth  Price,  bequeathed  the  income  of  £2,- 
000.  to  Mary  Gay,  a  French  subject  domiciled  in  France,  and  the  prin- 
cipal sum  after  her  death  to  the  person  whom  Mary  Gay  should  by  her 
last  will  appoint.  After  the  death  of  her  first  husband,  Mary  Gay 
married  Auguste  Die  Forfillier,  also  a  French  subject  domiciled  in 
France.  In  1887  she  made  a  holograph  will,  in  French  form  and  un- 
attested, valid  according  to  French  law,  in  which  she  disposed  of  all 
the  property  she  might  have  at  the  time  of  her  death  in  favor  of  her 
husband.  The  will  did  not  conform  to  sections  9  and  10  of  the  Eng- 
lish wills  act,  since  it  had  not  been  attested  by  two  or  more  witnesses. ^^ 

Sttrung,  J.  Under  the  will  of  Lady  Price  the  fund  is  to  be  paid 
and  transferred  in  such  manner  as  Madame  Forfillier  "shall  by  her 
last  will  appoint."  The  first  question  arises  as  to  the  word  "will" 
which  there  occurs — whether  it  means  any  instrument  recognised  by 
the  law  of  England  as  a  will  or  a  will  executed  in  accordance  with 
the  law  of  England.  I  shall  first  consider  the  three  authorities  which 
have  been  cited  to  me  as  bearing  on  this  subject.    The  first  is  the  case 

21  See  J.  II.  P.oale,  Jr.,  Equitable  Interests  in  Foreign  Property,  20  Harv. 
Law  Rev.  382-.397. 

22  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


Ch,    4)  INHERITANCE.  673 

of  D'Huart  v.  Harkness,  34  Beav.  324.  There,  under  the  will  of 
an  English  lady,  a  sum  of  Consols  was  held  upon  trust  for  her  daugh- 
ter for  her  separate  use  for  life,  and  after  her  decease  upon  trust 
for  such  persons  as  her  said  daughter  "by  her  last  will  and  testament 
in  writing  duly  executed"  should  direct  or  appoint.  The  daughter 
was  an  Englishwoman  by  birth,  but  she  married  a  domiciled  French- 
man and  resided  in  France  till  her  death;  she  made  a  will,  which 
was  not  attested,  whereby  she  bequeathed  the  sum  of  Consols  to  her 
husband.  This  will  was  valid  by  the  law  of  France  and  had  been  ad- 
mitted to  probate  in  this  country.  It  was  held  by  Lord  Romilly  that 
the  will  was  a  valid  execution  of  the  power.  It  will  be  observed  that, 
as  regards  the  facts,  that  case  is  as  near  to  the  present  case  as  one 
case  can  be  to  another.  The  material  portion  of  the  judgment  is 
this  (34  Beav.  327)  :  "A  sum  of  money  is  given  simply,  to  such  per- 
son as  the  Baroness  shall  by  her  last  will  duly  executed  appoint.  What 
does  that  mean?  It  means  a  will  so  executed  as  to  be  good  according 
to  the  English  law.  Here  it  is  admitted  to  probate,  and  that  is  con- 
clusive that  it  is  good  according  to  the  English  law.  The  English 
law  admits  two  classes  of  wills  to  probate,  first,  those  which  follow 
the  forms  required  by  St.  1  Vict.  c.  26,  §  9,  and  secondly,  those  ex- 
ecuted by  a  person  domiciled  in  a  foreign  country,  according  to  the 
law  of  that  country,  which  latter  are  perfectly  valid  in  this  country. 
Accordingly,  where  a  person  domiciled  in  France  executes  a  will  in 
the  mode  required  by  the  law  of  that  country,  it  is  admitted  to  proof 
in  England,  though  the  English  formalities  have  not  been  observed. 
When  a  person  simply  directs  that  a  sum  of  money  shall  be  held  sub- 
ject to  a  power  of  appointment  by  will,  he  does  not  mean  any  one 
particular  form  of  will  recognised  by  the  law  of  this  country,  but  any 
will  which  is  entitled  to  probate  here.  A  power  to  appoint  by  will, 
simply,  may  be  executed  by  any  will  which  according  to  the  law  of 
this  country  is  valid,  though  it  does  not  follow  the  forms  of  the  stat- 
ute." 

The  next  case  is  that  of  In  re  Kirwan's  Trusts,  25  Ch.  D.  373,  which 
came  before  Kay,  L.  J.,  when  a  judge  of  first  instance.  The  facts  of 
that  case  require  some  attention.  The  power  there  was  by  deed  or 
will  to  be  executed  in  the  presence  of  two  or  more  witnesses  to  ap- 
point amongst  children.  The  donee  of  the  power  was  an  English  sub- 
ject. His  testamentary  disposition  consisted  of  two  instruments — 
first,  a  will  executed  in  accordance  with  English  law,  but  invalid  ac- 
cording to  French  law,  and  secondly,  a  codicil  not  executed  in  accord- 
ance with  English  law,  but  valid  according  to  the  law  of  France.  In 
order  to  have  both  will  and  codicil  proved  here,  it  was  necessary  to 
have  recourse  to  Lord  Kingsdown's  act,  and  the  will  and  codicil, 
which  together  made  the  testamentary  disposition,  were  admitted  to 
probate  by  virtue  of  that  statute.  Now,  the  instrument  which  pur- 
ported to  execute  the  power  was  the  codicil,  which  was  unattested, 
and,  consequently,  was  not  an  instrument  falling  within  the  terms  of 
L0R.C0NF.L.-43 


674  PARTICULAR  SUBJECTS.  (Part  2 

the  power.  Neither  did  it  satisfy  the  requirements  of  the  wills  act. 
Upon  that  Kay,  J.,  says  (25  Ch.  D.  379):  "Now,  the  codicil  was  not 
attested,  and  therefore  it  did  not  fulfil  the  requisites  either  of  the 
power  or  of  the  wills  act  (St.  1  Vict.  c.  26),  but  it  was  a  good  testa- 
mentary document  under  St.  24  &  25  Vict.  c.  114.  *  *  *  This  be- 
ing a  good  testamentary  instrument  by  the  law  of  the  domicile  of 
George  Saint  Lo  Kirwan,  which  I  understand  was  France  at  the  time, 
although  not  executed  as  required  by  the  wills  act,  has  under  the  act 
which  I  have  referred  to  been  admitted  to  probate  in  England,  and 
the  documents  admitted  to  probate  are  two,  i.  e.,  the  will  of  the  3d 
April,  1862,  and  the  codicil  of  the  9th  of  May,  1871."  Then,  after 
considering  the  effect  of  that,  he  goes  on  to  say,  (25  Ch.  D.  381): 
"It  is  a  good  testamentary  instrument,  and  its  only  defect  is  its  want 
of  attestation.  But  the  wills  act  says  that  'no  appointment  made  by 
will  in  exercise  of  any  power  shall  be  valid  unless  the  same  be  exe- 
cuted in  manner  hereinbefore  required,'  that  is  to  say,  in  the  presence 
of  and  attested  by  two  witnesses.  The  later  act  (St.  24  &  25  Vict. 
c.  114)  does  not  refer  to  that  clause,  nor,  indeed,  does  it  refer  to  a 
power  of  appointment  at  all.  It  only  does  this.  It  makes  a  will  exe- 
cuted abroad  by  a  British  subject  a  good  will  if,  it  be  such  a  document 
as  is  recognised  as  a  will  by  the  law  of  that  place.  But  it  does  not 
at  all  touch  or  interfere  with  the  negative  provision  in  the  wills  act, 
namely,  that  no  testamentary  appointment  can  be  made  unless  it  is 
attested  by  two  witnesses.  Therefore,  I  do  not  think  it  would  be 
possible  to  treat  this  codicil  as  being  a  good  and  valid  appointment 
either  at  law  or  in  equity."  Now,  I  pause  there  to  remark  that  the 
facts  of  that  case  are  different  from  those  of  the  present  case  in  two 
respects :  First,  the  power  was  of  a  different  kind,  and  secondly, 
the  testamentary  disposition  was  admitted  to  probate  only  by  virtue 
of  Lord  Kingsdown's  act,  whereas  here  Lord  Kingsdown's  act  does 
not  come  into  operation.  Unfortunately,  D'Huart  v.  Harkness,  34 
Beav.  324,  was  not  cited  in  Re  Kirwan's  Trusts,  25  Ch.  D.  373,  and 
I  have  not  the  benefit  of  any  observations  of  Kay,  J.,  upon  it,  but  it 
has  been  considered  by  Kekewich,  J-,  in  the  recent  case  of  Hummel  v. 
Hummel,  [1898]  1  Ch.  642.  The  facts  stated  in  the  headnote  are  as 
follows :  "A  daughter  of  a  testator  had  under  his  will  a  general  power 
of  appointment  by  Avill  over  a  share  of  his  residuary  estate.  The 
daug'hter  died  in  France,  having  while  residing  there  made  a  dispo- 
sition of  her  property  by  a  writing  signed  by  her  but  not  attested,  the 
writing  being  in  form  a  valid  will  according  to  French  law" — and  it 
was  held  that  the  writing,  even  if  admissible  to  probate  under  section 
1  of  Lord  Kingsdown's  act,  did  not  operate  as  an  execution  by  the 
daughter  of  her  general  power  of  appointment  by  will,  since  it  had 
not  been  attested  by  two  or  more  witnesses  as  required  by  sections  9 
and  10  of  the  wills  act.  The  question  which  I  have  to  decide  really 
did  not  arise  there,  because  the  document  relied  on  as  an  execution 
of  the  power  had  not  been  admitted  to  probate;    but  Kekewich,  J., 


Ch.    4)  INHERITANCE.  675 

does  consider  the  question  whether,  supposing  it  could  be  proved,  it 
would  be  a  good  execution  of  the  power,  and  he  proceeds  on  the 
footing  that  the  will  could  only  be  proved  under  Lord  Kingsdown's 
act.  He  says  this  ([1898]  1  Ch.  615)  :  "It  is,  I  will  assume,  *  *  * 
a  valid  will  according  to  the  law  of  France;  but  it  is  not  a  will  that 
could  under  the  provisions  of  the  wills  act  be  proved  in  this  country. 
The  question  is.  Can  it  operate  as  an  exercise  of  a  general  power  of 
appointment  by  will?  As  to  that,  the  decision  of  Kay,  J.,  in  Re  Kir- 
wan's  Trusts,  25  Ch.  D.  373,  is  conclusive  that  it  cannot,  even  if  it 
had  been  a  will  that  could  be  proved  in  this  country.  Is  that  decision 
inconsistent  with  D'Huart  v.  Harkness,  34  Beav.  324,  where  Sir  J. 
Romilly,  M.  R.,  decided  that  a  power  to  appoint  'by  a  will  duly  ex- 
ecuted' is  well  exercised  by  a  will  good  according  to  the  law  of  the 
country  of  the  testator's  domicile,  though  ill  executed  according  to 
the  law  of  England?  That  case,  as  already  mentioned,  was  not  re- 
ferred to  in  Re  Kirwan's  Trusts,  25  Ch.  D.  373,  but  the  latter  is  cited 
in  a  note  on  page  308  of  1  Williams  on  Executors  (9th  Ed.),  as  the 
authority  for  the  proposition  that  in  the  case  of  a  will  which  is  only 
valid  by  reason  of  Act  24  &  25  Vict.  c.  114,  sections  9  and  10  of  the 
wills  act  must  be  complied  with.  That  appears  to  me  to  form  the  dis- 
tinction between  the  two  cases."  Then  he  refers  to  Lord  Kingsdown's 
act.  The  opinion  there  expressed  by  the  learned  judge  appears  to  me 
to  be  that  D'Huart  v.  Harkness,  34  Beav.  324,  was  not  inconsistent 
with  In  re  Kirwan's  Trusts,  25  Ch.  D.  373,  upon  the  ground  that  the 
latter  decision  only  applied  to  a  case  in  which  the  will  was  proved 
under  the  provisions  of  Lord  Kingsdown's  act.  That  Act  only  applies 
to  the  wills  of  British  subjects.  Madame  Forfillier  was  not  a  Brit- 
ish subject  but  a  French  subject,  and  as  a  matter  of  fact  the  grant 
of  letters  of  administration  with  the  will  annexed  was  not  under 
Lord  Kingsdown's  act  at  all.  Therefore,  looking  at  the  authorities 
and  having  regard  to  the  view  taken  by  Kekewich  J.,  I  am  of  opinion 
that  I  ought  to  follow  D'Huart  v.  Harkness,  34  Beav.  324,  and  not 
In  re  Kirwan's  Trusts,  25  Ch.  D.  373.  But  I  go  further.  I  think  that 
on  principle  D'Huart  v.  Harkness,  34  Beav.  324,  was  well  decided. 
The  general  rule  on  the  subject  is,  as  stated  by  Mr.  Dicey  (Conflict 
of  Laws,  p.  684),  that  "any  will  of  movables  which  is  valid  according 
to  the  law  of  the  testator's  domicile  at  the  time  of  his  death  is 
valid"  in  England.  It  follows  that  the  provisions  of  an  English  stat- 
ute prescribing  formalities  with  reference  to  wills  do  not  apply  to  the 
wills  of  persons  not  domiciled  in  England. 

In  Bremer  v.  Freeman,  10  Moo.  P.  C.  306,  it  appears  to  have  been 
contended  that  the  provisions  of  section  20  of  the  wills  act  as  to  the 
revocation  of  wills  applied  to  the  wills  of  persons  domiciled  abroad. 
Lord  Wensleydale  in  delivering  the  judgment  of  the  court  said  that 
for  reasons  referred  to  by  him  it  was  unnecessary  to  consider  the 
point,  but  added  (10  Moo.  P.  C.  359):  "Their  Lordships,  however, 
do  not  wish  to  intimate  any  doubt  that  the  law  of  the  domicile  at  the 


676  PARTICULAR  SUBJECTS.  (Part  2 

time  of  the  death  is  the  governing  law  (see  Story,  Conflict  of  Laws, 
§  473),  nor  any  that  St.  7  Wm.  IV  &  1  Vict.  c.  26,  applies  only  to 
wills  of  those  persons  who  continue  to  have  an  English  domicile,  and 
are  consequently  regulated  by  the  English  law." 

Section  9  of  the  wills  act  prescribed  that  "no  will  shall  be  valid 
unless  it  shall  be  in  writing  and  executed  in  manner  hereinafter  men- 
tioned." Notwithstanding  this  language,  it  is  the  practice  of  the 
Probate  Division,  on  the  principle  just  stated,  to  admit  to  probate  or 
otherwise  recognise  as  valid  the  wills  of  persons  domiciled  abroad,  al- 
though not  executed  as  prescribed  by  the  act.  The  present  case  af- 
fords an  instance  of  this  being  done.  I  fail  to  see  why  the  provisions 
of  section  10  of  the  wills  act  should  apply  to  the  will  of  Madame  For- 
fillier  any  more  than  those  of  section  9. 

There  is,  however,  a  series  of  cases  referred  to  in  the  argument 
which  seems  to  establish  that  a  will  purporting  to  be  made  in  execu- 
tion of  a  power  is  valid  if  it  satisfies  the  requirements  of  the  instru- 
ment creating  the  power,  although  it  would  be  invalid  according  to 
the  law  of  the  domicile  of  the  testator  at  the  time  of  his  death.  See 
In  the  Goods  of  Alexander,  29  L.  J.  (P.  M.  &  A.)  93;  In  the  Goods 
of  Hallyburton,  L.  R.  1  P.  &  M.  90;  In  the  Goods  of  Huber,  [1896] 
P.  209.  These  cases,  however,  do  not  lay  down  that  a  power  to  ap- 
point by  will  (without  special  formalities)  conferred  on  a  person  domi- 
ciled abroad  cannot  be  executed  by  a  will  valid  by  the  law  of  the  domi- 
cile of  the  donee  of  the  power  at  the  time  of  his  death,  and  consequently 
do  not  appear  to  me  to  affect  the  decision  of  the  present  case. 

In  the  view  which  I  take  I  am  not  concerned  to  deal  with  In  re 
Kirwan's  Trusts,  25  Ch.  D.  373,  which  is  distinguishable  in  its  facts 
from  the  present  case ;  but  I  may  say  that  the  decision  in  that  case 
may  be  rested  on  these  grounds.  First,  the  power  was  required  to  be 
executed  by  an  instrument  in  a  special  form  which  the  instrument 
said  to  be  an  execution  of  the  power  did  not  satisfy.  Secondly,  the 
wills  act  had  no  application,  inasmuch  as  the  testator  was  domiciled 
abroad;  and  although  the  instrument  was  not  invalidated  by  the  pro- 
hibitory portion  of  section  10,  it  did  not  derive  validity  from  the  en- 
abling portion  of  that  section.  In  any  case  the  ijistrument  did  not 
satisfy  the  requirements  of  the  wills  act.  Thirdly,  although  the  in- 
strument was  valid  by  Lord  Kingsdown's  act,  still,  as  was  pointed 
out  by  Kay,  J.,  that  statute  does  not  contain  any  enactment  dealing 
with  wills  made  in  exercise  of  powers.  Although  some  of  the  lan- 
guage used  by  that  learned  judge  may  be  susceptible  of  a  different 
interpretation,  I  am  not  sure  that  he  intended  to  decide  anything  in- 
consistent with  the  principle  I  have  stated. 

In  my  opinion,  therefore,  it  was  competent  for  Madame  Forfillier 
to  exercise  the  power  conferred  on  her  by  Lady  Price's  will  by  such  a 
will  as  has  been  recognised  by  the  Probate  Division.  It  remains  to  be 
considered  whether  she  has  done  so.  This  question  is  one  of  con- 
struction. 


Ch.    4)  INHERITANCE.  677 

In  general  a  will  is  to  be  construed  according  to  the  law  of  the 
domicile  of  the  testator;  "but  this  is  a  mere  canon  of  interpretation, 
which  should  not  be  adhered  to  when  there  is  any  reason,  from  the 
nature  of  the  will,  or  otherwise,  to  suppose  that  the  testator  wrote 
it  with  reference  to  the  law  of  some  other  country."  Dicey,  Conflict 
of  Laws,  p.  695.  Considering  first  the  law  of  France,  according  to 
which  prima  facie  the  will  is  to  be  construed,  the  evidence  shews  that 
the  will  of  Madame  Forfillier  is  a  complete  disposition  of  all  the 
property  which  she  could  dispose  of;  but  it  also  appears  that  the  mode 
of  disposition  by  appointment  is  not  practised  in  France,  and  that 
if  a  French  court  had  to  consider  the  effect  of  the  will  in  this  respect 
it  would  apply  the  English  law.  It  is  contended  with  regard  to  the 
law  of  England  that  the  provisions  of  the  wills  act,  including  section 
27,  are  inapplicable,  and  that  consequently  the  law  of  England  ap- 
plicable is  the  law  as  it  existed  before  that  act,  and  that,  there  being 
no  reference  in  the  will  either  to  the  power  or  to  the  property,  it  is 
not  a  good  execution  of  the  power.  If  I  am  to  apply  the  law  as  it 
existed  before  the  wills  act,  questions  of  difficulty  might  arise;  but 
it  appears  to  me  that  I  can  decide  this  case  upon  another  ground.  The 
testatrix  says :  "I  declare  that  this  will  annuls  all  the  others  *  *  * 
and  that  it  shall  thus  be  considered  in  England  the  same  as  in  France." 
I  think  that  that  amounts  to  a  declaration  by  the  testatrix  that  she 
meant  the  will  to  operate  as  her  last  will  in  England  as  well  as  in 
France.  I  think  it  is  indicated  upon  the  face  of  the  will  that  she  wrote 
it  with  reference  to  the  law  of  England  as  well  as  the  law  of  France. 
Therefore  I  think  that  I  am  entitled  to  apply  the  rules  of  construc- 
tion which  would  by  English  law  be  applied  to  a  will  expressed  in  the 
same  termis  and  of  the  sam^  date  as  that  annexed  to  the  letters  of  ad- 
ministration, including  the  rule  of  construction  introduced  by  sec- 
tion 27  of  the  wills  act. 

No  question  arises  between  Monsieur  Forfillier  and  the  daughter 
of'  his  wife  by  her  first  marriage,  who  by  the  law  of  France  might 
have  a  claim  if  this  fund  had  been  part  of  Madame  Forfillier's  prop- 
erty;  for  she  appears  and  supports  the  claim  of  Monsieur  Forfillier. 

In  my  opinion,  therefore,  the  husband.  Monsieur  Forfillier,  is  en- 
titled to  the  fund. 


COTTING  V.  DE  SARTIGES. 

(Supreme  Court  of  Rhode  Island,  1892.     17  R.  I.  668,  24  Atl.  530,  16  L.  R. 

A.  367.) 

Bill  in  equity  for  instructions  and  for  the  administration  of  a  trust. 

Stiness,  J."    The  complainant,  trustee  under  the  wiU  of  Mary  M. 

Bourne,  late  of  Newport,  deceased,  brings  this  bill,  practically  a  bill 

23A  part  of  the  opinion,  discussing  the  law  of  Rhode  Island  on  the  execution 
of  powers  in  a  will,  has  been  omitted. 


G78  PARTICULAR  SUBJECTS.  (Part  2 

for  instructions,  for  the  distribution  of  the  trust  fund,  and  the  case 
is  submitted  on  bill,  answer,  and  proofs.  The  will  was  dated  Septem- 
ber 30,  1879,  and  admitted  to  probate  in  Newport,  January  IC,  1882. 
The  testatrix  bequeathed  one  sixth  of  her  residuary  estate  to  the  com- 
plainant in  trust  for  the  benefit  of  her  grandson  Charles  Allen  Thorn- 
dike  Rice  during  his  life,  and  upon  his  decease  to  transfer  and  pay 
over  the  same  to  his  issue,  if  he  should  leave  any,  as  he  should  ap- 
point "by  will,  or  instrument  in  the  nature  thereof,  executed  in  the 
presence  of  three  or  more  witnesses;  and,  if  he  leaves  no  issue,  to  and 
among  such  persons,  and  upon  such  uses  and  trusts,  as  he  shall  so 
appoint;"  and,  in  default  of  such  appointment  and  issue,  to  and  among 
those  who  should  then  be  her  heirs  at  law.  The  grandson  died  in 
New  York,  May  16,  1889,  without  issue,  leaving  a  will  executed  in 
England,  September  17,  1881,  which  was  duly  probated  in  New  York, 
where  he  was  domiciled  at  his  death.  The  will  did  not  specifically  dis- 
pose of  the  trust  fund,  which  was  subject  to  Mr.  Rice's  appointment, 
nor  make  any  mention  of  it.  The  complainant  is  both  trustee  under 
the  will  of  Mrs.  Bourne  and  executor  of  the  will  of  Mr.  Rice.  In  the 
latter  capacity  he  claims  the  right  to  receive  and  distribute  the  fund, 
as  one  which  passes  by  appointment  to  the  legatees  under  Rice's  will. 
On  the  other  hand,  the  heirs  of  Mrs.  Bourne  contend  that  there  is  a 
default  of  appointment,  and  so,  under  her  will,  the  fund  goes  to  them. 
The  issue  now  raised,  therefore,  is  whether  there  has  been  an  execu- 
tion of  the  power  by  the  general  residuary  clause  of  Mr.  Rice's  will. 
Upon  this  issue  our  first  inquiry  must  be  by  what  law  the  execution  of 
the  power  is  to  be  determined.  It  is  admitted  that  both  in  England, 
where  the  will  was  executed,  and  in  New  York,  where  the  donee  of 
the  power  was  domiciled,  there  are  statutory  provisions  to  the  effect 
that  a  general  devise  or  bequest  will  include  property  over  which  the 
testator  has  power  of  appointment,  and  will  operate  as  an  execution 
of  such  power,  unless  an  intention  not  to  execute  the  power  shall 
appear  by  the  will.  If,  therefore,  the  question  is  to  be  determined  ei- 
ther by  the  law  of  England  or  New  York,  the  power  has  been  executed. 
Clearly,  the  mere  accident  that  Mr.  Rice's  will  was  executed  in  Eng- 
land while  he  was  temporarily  there  awaiting  a  steamer  cannot  control 
its  operation  by  impressing  upon  it  the  law  of  the  place  where  it  was 
made.  It  was  neither  the  domicile  of  the  testator,  nor  the  situs  of 
the  property,  nor  the  forum  whe-e  the  question  comes  for  determina- 
tion. Caufield  v.  Sullivan,  85  N.  Y.  153.  The  property  in  dispute 
being  personal  property,  which,  strictly  speaking,  has  no  situs,  the 
question  must  be  decided  by  the  law  either  of  New  York,  the  domicile 
of  the  donee  of  the  power,  or  of  this  state,  the  domicile  of  the  donor. 
The  will  is  a  Rhode  Island  will.  It  disposes  of  property  belonging  to 
a  resident  of  Rhode  Island.  The  trustee  uhder  the  will  is,  in  effect, 
a  Rhode  Island  trustee,  and  jurisdiction  over  the  trustee  and  the  fund 
is  here.  The  fund  in  question  belonged  to  Mrs.  Bourne,  and  never 
belonged  to  Mr.  Rice.    True,  he  had  the  income  from  it  for  life,  and 


Ch.    4)  INHERITANCE.  GT9 

power  to  dispose  of  it  at  death — practically  the  dominion  of  an  owner — 
and  yet  it  was  not  his. 

The  fund,  then,  being  a  Rhode  Island  fund,  disposable  under  a 
Rhode  Island  will,  it  follows,  naturally  and  necessarily,  that  the  fact 
of  its  disposition  must  be  determined  by  Rhode  Island  law.  The  ques- 
tion is  not  what  intent  is  to  be  imputed  to  the  will  of  Mr.  Rice,  but 
what  intent  is  to  be  imputed  to  the  will  of  Mrs.  Bourne.  She  authoriz- 
ed a  disposition  of  her  property  by  an  appointment,  and  it  is  under 
her  will  that  the  question  arises  whether  an  appointment  has  been 
made.  Her  will  is  to  be  adjudged  by  the  law  of  her  domicile.  So  far 
as  assumptions  of  intent  may  be  made,  it  is  to  be  presumed  she  intended 
the  appointment  to  be  made  according  to  the  law  of  her  domicile, 
and  not  by  the  law  of  New  York  or  England,  or  any  other  place 
where  the  donee  of  the  power  might  happen  to  live.  It  is  not  the 
fact  of  Mrs.  Bourne's  ownership  of  the  property  which  points  to  the 
law  of  this  state  as  the  criterion,  but  the  fact  that  her  will  is  the  con- 
trolling instrument  in  the  disposition  of  the  property.  Precisely  this 
question  arose  in  Sewall  v.  Wilmer,  132  Mass.  131,  where  Judge  Gray 
remarked  that  the  question  is  singularly  free  of  direct  authority.  In 
that  case  a  Massachusetts  testator  gave  to  his  daughter  a  power  of 
appointment  of  certain  property.  The  daughter  lived  in  Maryland, 
where  she  died  leaving  a  will  devising  all  her  property  to  her  hus- 
band, but  making  no  mention  of  the  power.  In  Massachusetts  this 
was  an  execution  of  the  power,  but  in  Maryland  it  was  not;  and  the 
question  arose,  which  law  should  govern?  It  was  held  that  the  will 
of  the  father  was  the  controlling  instrument,  and  hence  that  the  law 
of  his  domicile  was  to  apply.  The  same  decision  was  made  in  Bing- 
ham's Appeal,  64  Pa.  345,  which  is  cited  in  Sewall  v.  Wilmer  with 
approval.  In  England,  also,  it  has  been  held  that  the  validity  of  the 
execution  of  a  power  is  to  be  determined  by  the  law  of  the  domicile 
of  the  donor  of  the  power.  Tatnall  v.  Hankey,  2  Moore,  P.  C.  342 ; 
In  re  Alexander,  6  Jur.  (N.  S.)  354.  The  principle  on  which  these 
cases  proceed  is  that  to  which  we  have  already  alluded,  viz.,  that  the 
appointer  is  merely  the  instrument  by  whom  the  original  testator  des- 
ignates the  beneficiary,  and  the  appointee  takes  under  the  original 
will,  and  not  from  the  donee  of  the  power.  The  law  of  the  domicile 
of  the  original  testator  is  therefore  the  appropriate  test  of  an  execu- 
tion of  a  power.  The  case  of  D'Huart  v.  Harkness,  34  Beav.  324, 
328,  apparently  holds  the  contrary,  but,  we  think,  only  apparently. 
In  that  case  property  was  held  under  an  English  will,  with  power  of 
appointment,  by  will,  in  a  woman  domiciled  in  France.  She  died 
leaving  a  holograph,  which  was  valid  as  a  will  in  France,  but  not  in 
England.  Under  the  wills  act,  it  was  admitted  to  probate  in  England, 
as  a  foreign  will,  which  gave  it  all  the  validity  of  an  English  will. 
The  probate  in  England  was  neld  to  be  conclusive  that  it  was  a  good 
will,  according  to  English  law;  and,  being  a  will,  it  executed  power.' 
The  case  was  really  decided  by  the  law  of  England.    While  there  are 


G80  PARTICULAR  SUBJECTS.  (Part   2 

numerous  decisions  upon  the  general  rule  that  a  will  is  to  be  governed 
by  the  law  of  the  testator's  domicile,  such  decisions  are  not  to  be 
confounded  with  the  present  question — which  testator  is  the  one  to 
be  considered  in  the  case  of  a  testamentary  power?  We  know  of  no 
case  which  applies  the  law  of  the  domicile  of  the  donee  of  the  power 
without  reference  to  that  of  the  donor.  For  these  reasons  we  think  the 
law  of  the  domicile  of  the  donor  of  the  power  should  control,  and  hence 
that  the  law  of  Rhode  Island  must  govern  in  this  case.     *     *     *^* 

24  See,  also,  In  re  d'Estes  Settlement  Trusts,  [1903]  1  Ch.  898;  In  re  Schole- 
field,  [1905]  2  Ch.  408 ;    Minor,  Conflict  of  Laws,  §  150. 

Probate. — A  probate  proceeding,  being  in  the  nature  of  a  proceeding  in  rem, 
will  be  binding  only  if  the  court  admitting  a  w'ill  to  probate  had  jurisdiction 
over  the  res.  Hence  the  probate  of  a  will  at  the  last  domicile  of  the  testator 
will,  in  the  absence  of  statute,  not  be  evidence  of  title,  nor  have  any  effect 
upon  foreign  land.  Robertson  v.  Pickrell,  109  U.  S.  608,  3  Sup.  Ct.  407,  27  L. 
Ed.  1049  (1883) ;   M'Cormick  v.  Sullivant,  10  Wheat.  193,  3  L.  Ed.  300  (1825). 

A  will  of  personalty  may  be  proved  in  any  jurisdiction  where  there  is  prop- 
erty of  the  deceased.  Gordon's  Case,  50  N.  J.  Eq.  397,  26  Atl.  268  (1893).  But 
if  it  is  admitted  to  probate  in  a  jurisdiction  other  than  that  of  the  last  domicile 
of  the  testator,  it  has  been  held  by  the  courts  of  the  domicile  that,  in  the 
absence  of  statute,  it  will  be  recognized  only  with  respect  to  property  within 
the  foreign  jurisdiction.  Walton  v.  Hall's  Estate,  66  Vt.  455,  29  Atl.  803  (1894) ; 
Newcomb  v.  Newcomb,  108  Ky.  582,  57  S.  W.  2,  51  L.  R.  A.  419  (1900).  See, 
also,  Bowen  v.  Johnson,  5  R.  I.  112,  73  Am.  Dec.  49  (1858) ;  In  re  Clark's  Es- 
tate. 148  Cal.  108,  82  Pac.  760,  1  L.  R.  A.  (N.  S.)  996,  113  Am.  St.  Rep.  l97  (1905). 

The  courts  of  the  last  domicile  of  the  deceased  are  regarded  as  the  courts 
of  primarv  jurisdiction  with  respect  to  wills  of  personalty.  Enohin  v.  Wylie, 
10  H.  L.  Cas.  1  (1862) ;  Pratt  v.  Douglas,  38  N.  J.  Eq.  516  (1884).  Probate 
granted  within  such  jurisdiction  will  be  recognized  by  the  courts  of  the  other 
states.  Goodman  v.  Winter,  64  Ala.  410,  38  Am.  Rep.  13  (1879);  Succession 
of  Gaines,  45  La.  Ann.  1237,  14  South.  233  (1893);  Martin  v.  Stovall,  103 
Tenn.  1,  52  S.  W.  296,  48  L.  R.  A.  130  (1899).  So  as  to  a  title  adjudicated 
upon  by  the  courts  of  the  domicile.  Crispin  v.  Doglioni,  1863,  3  S.  &  T.  96 ; 
In  re  Trufort,  L.  R.  36  Ch.  D.  600  (1887).  But  see  Kerr  v.  Moon,  9  Wheat. 
565,  6  L.  Ed.  161  (1824).  So  as  to  construction  ]ilaced  upon  the  will  by  such 
court.  Ford  v.  Ford,  SO  Mich.  42,  44  N.  W.'  1057  (1890) ;  Smith  v.  Central 
Trust  Co.,  154  N.  Y.  333,  48  N.  E.  553  (1897). 

A  finding  by  the  probate  court  that  the  testator  was  domiciled  within  the 
.jurisdiction  of  the  state,  and  a  recital  thereof  in  the  decree  admitting  the  will 
to  probate,  will  not  be  binding  upon  the  courts  of  another  state.  Overby  v. 
Gordon,  177  U.  S.  214,  20  Sup.  Ct.  603,  44  L.  Ed.  741   (1900). 

By  statute,  wills  proved  in  one  state,  w'ith  the  probate  thereof  duly  authen- 
ticated, may  be  admitted  to  probate  in  another  jurisdiction.  Crippen  v.  Dex- 
ter, 13  Gray  (Mass.)  330  (1859) ;  Evansville,  etc.,  Co.  v.  Wiusor,  148  Ind. 
682,  48  N.  E.  592  (1897).     See,  also,  115  Am.  St.  Rep.  518-522. 

As  to  conclusiveness  of  probate  as  res  judicata  see,  in  general,  21  L.  R.  A. 
6S0-6S9.  As  to  effect  of  probate  of  a  will  in  another  state,  see  48  L.  R.  A. 
130-153. 

As  to  succession  tax,  see  Matter  of  Estate  of  Swift,  137  N.  Y.  77.  32  N.  E. 
1096,  18  L.  R.  A.  709  (1893) ;  Matter  of  Houdayer,  150  N.  Y.  37.  44  N.  E.  718, 
34  L.  R.  A.  235,  55  Am.  St.  Rep.  642  (1896);  Blackstone  v.  Miller,  188  U.  S. 
189,  23  Sup.  Ct.  277,  47  L.  Ed.  439  (1903);  Matter  of  Clinch,  180  N.  Y.  300, 
73  N.  E.  35  (1905) ;  Matter  of  Gordon,  186  N.  Y.  471,  79  N.  E.  722,  10  L.  R. 
A.  (N.  S.)  1089  (1906) ;  Matter  of  Ramsdill,  190  N.  Y.  492,  83  N.  E.  584  (1908). 
See,  also.  Stern  v.  Queen,  [1896]  1  Q.  B.  211;    8  Col.  L.  Rev.  398. 

Continental  Lav*^. — 1.  Intestate  Succession. — France. — Succession  to  'im- 
movables is  governed  by  the  law  of  their  situs.  Article  3,  Civ.  Code ;  Cass. 
Jan.  26,  1892  (D.  1892,  1,  497),  and  note  by  A.  Pic.  Subject,  however,  to 
renvoi.  App.  Aix,  July  19,  3906  (4  Darras,  805).  The  movable  property  of 
a  deceased  foreigner  will  be  distributed  in  accordance  with  French  law,  if 


Ch.    4)  INHERITANCE.  681 

the  decedent  had  an  authorized  domicile  in  Ftance.  In  the  absence  of  such 
authorized  domicile,  his  national  law  will  govern.  Cass.  May  5,  1875  (S.  1875, 
1,  409);  App.  Paris,  Aug.  1,  1905  (D.  1906,  2,  1G9).  Subject  to  renvoi. 
Cass.  June  24,  1878  (D.  1879,  1,  56);  Cass.  Feb.  22,  1882  (S.  1882,  1,  393); 
App.  Grenoble,  March  81,  1908  (35  Clunet,  837).  Contra,  App.  Pau,  June  11, 
1906  (D.  1907,  2,  1). 

See,  also,  note,  4  Darras,  813. 

Germany. — The  national  law  of  the  deceased  applies  with  respect  to  both 
realty  and  personalty  (article  24,  par.  1,  and  article  25.  Law  Intr.  Civ.  Code) ; 
subject,  however,  to  renvoi  (article  27).  If  a  German  dies  domiciled  in  a  for- 
eign country,  his  heirs  may  claim  the  benefit  of  such  foreign  law  with  respect 
to  their  liability  for  the  debts  of  the  deceased.  Article  24,  par.  2,  Law  Intr. 
Civ.  Code.  On  the  other  hand,  if  a  foreigner  dies  domiciled  in  Germany,  a 
German  may  claim  rights  in  the  estate,  which  are  based  solely  on  German 
law,  unless,  under  the  law  of  the  state  of  which  the  decedent  was  a  subject, 
German  law  is  held  to  apply  exclusively  to  the  succession  of  a  German  dom- 
iciled in  such  state.    Article  25,  Law  Intr.  Civ.  Code. 

Article  24.  par.  1,  and  article  25,  Law  Intr.  Civ.  Code,  do  not  apply  to 
property  situated  in  a  state  under  whose  law  special  rules  apply.  Article  28, 
Law  Intr.  Civ.  Code.  As  to  immovables,  see,  also,  R.  G.  May  31,  1906  (35 
Clunet,  193). 

Italy. — The  national  law  of  the  deceased  will  govern  the  devolution  of  both 
movable  and  immovable  property.  Article  8,  Prel.  Disp.  Civ.  Code ;  App. 
Genoa,  March  16,  1887  (La  Legge,  1887,  2,  310);  App.  Milan,  March  21,  1905 
(33  Clunet,  1236).  The  national  law  is  applied  by  some  courts  also  to  immov- 
ables situated  in  a  country  under  whose  law  the  lex  rei  sitae  is  held  to  gov- 
ern the  succession  to  realty.  Cass.  Turin,  Feb.  20,  1905  (34  Clunet,  509) ;  Trib. 
Civ.  Caltanissetta,  March  27,  1891  (20  Clunet,  955) ;  Cass.  Turin,  Dec.  20.  1905 
(35  Clunet,  910).  Others,  by  rensou  of  their  inability  to  enforce  their  decree 
under  the  circumstances,  will  to:  low  the  law  of  the  situs.  Cass.  Turin,  June 
17,  1874  (Monitore  1874,  p.  894) ;  Cass.  Palermo,  Aug.  25,  1894  (S.  1895,  4,  28) 
and  note. 

2.  Testamentary  Succession. — a.  Capacity. — France.  The  national  law  of 
the  testator  applies  to  wills  relating  to  both  movables  and  immovables.  App. 
Paris,  Aug.  10,  1872  (1  Clunet,  128),  semble.  Germany. — Articles  7,  24,  Law 
Intr.  Civ.  Code.  Italy. — Article  6,  Prel.  Disp.  Civ.  Code.  It  is  sometimes  dif- 
ficult to  determine  whether  a  matter  relates  to  capacity  or  to  form.  See 
French  Cass.  Apr.  2,  18S4  (S.  1886,  1,  121),  and  note;  Cass.  Florence,  Nov.  12, 

1897  (Monitore  1898,  245). 

b.  Form. — The  rule  "locus  regit  actum"  applies  to  wills  of  both  movable 
and  immovable  property.  France. — Trib.  Civ.  Seine,  Dec.  23,  ISSl  (9  Clunet. 
322).  Italy.— Article  9,  Prel.  Disp.  Civ.  Code ;  Cass.  Turin  May  31,  1881  (Mon- 
itore 1881,  p.  673).     Germany. — Articles  11,  24,  Law  Intr.  Civ.  Code. 

It  has  been  held,  however,  that  such  a  will  will  not  stand  in  the  face  of  an 
express  statute  existing  under  the  national  law  of  the  testator.  Cass.  Turin, 
April  12,  1892  (Monitore  1892,  p.  346). 

The  rule  "locus  regit  actum"  is  optional  in  Germany  and  Italy,  the  testa- 
tor being  authorized  to  execute  his  will  also  in  the  form  required  by  his  na- 
tional law.  Germany. — Articles  11,  24,  Law  Intr.  Civ.  Code.  Italy. — Article 
9,  Prel.  Disp.  Civ.  Code.  In  France  the  rule  seems  to  be  optional  for  French- 
men executing  wills  abroad,  article  999,  Civ.  Code,  but  imperative  for  foreign- 
ers executing  wills  in  France,  Cass.  March  9,  1853  (D.  1853,  1,  217) ;  App.  Aix, 
July  11,  1881  (S.  1883,  2,  249),  and  note  by  J.  E.  Labbe;    App.  Paris,  Dec.  2. 

1898  (D.  1899,  2,  177)  and  note  by  Ch.  Claro ;  App.  Orleans,  Feb.  24,  1904  (31 
Clunet,  680). 

In  favor  of  optional  character  of  the  rule,  permitting  compliance  with  the 
formal  requirements  of  the  national  law,  Trib.  Civ.  Seine,  June  28,  1895  (22 
Clunet,  847) ;  Trib.  Civ.  Rouen,  July  22,  1896 ;  App.  Rouen,  May  7,  1898  (26 
Clunet,  578).  See,  also,  note  by  E.  Naquet  to  Cass.  July  29,  1901  (S.  1903, 
1,  73). 

c.  Substantive  Provisions. — France. — The  rules  governing  the  devolution  of 
property  upon  intestacy  apply  here.  Cass.  Jan.  26,  1892  (D.  1892,  1,  497),  and 
note  by  P.  Pic;  Cass.  April  2,  1884  (S.  1886,  1,  121)  and  note;  App.  Pau, 
June  11.  1906  (D.  1907,  2,  1).     Subject,  however,  to  acquired  rights  upon  a 


682  PARTICULAR  SUBJECTS.  (Part  2 

change  of  nationality  or  otherwise.  App.  Paris,  Jan.  7,  1870  (S.  1870,  2, 
97);  Cass.  Jan.  31,  1832  (S.  1832,  1,  220).  Subject,  also,  to  the  rules  con- 
cerning public  order.  Cass.  Jan.  24,  1899  (D.  1900,  1,  533).  See,  also,  L.  Re- 
nault, De  la  succession  ab  intestat  des  etraugers  en  France  et  des  Fraugais 
a  I'etranger,  2  Clunet,  329-345,  422-429,  3  Clunet,  15-22. 

Oermany. — The  national  law  governs  both  as  to  movables  and  immovables. 
Article  24,  Law  Intr.  Civ.  Code.  Subject,  however,  to  renvoi.  Article  27,  Law 
Intr.  Civ.  Code.  Such  law  is  not  applicable  to  property  situated  in  a  state 
where  special  rules  prevail.  Article  28,  Law  Intr.  Civ.  Code.  See,  in  this 
connection,  article  59,  Law  Intr.  Civ.  Code. 

Consult,  also,  C.  Barazetti,  Zur  Erlauterung  des  Art.  24  Abs.  3  des  Einfiihr- 
ungsgesetzes  zum  biirgerlichen  Gesetzbuche  fiir  das  deutsche  Reich,  7  Nie- 
meyer,  1-7;  J.  Keidel,  Le  droit  international  priv6  dans  le  nouveau  Code 
Civil  Allemand.  26  Clunet,  260-275 ;  P.  Klein,  Zur  Auslegung  des  Art.  24  des 
E.  G.  zum  deutschen  biirgerlichen  Gesetzbuche,  12  Niemeyer,  444-446;  P. 
Klein,  Haben  die  deutschen  Vorschriften  iiber  Pflichtteilsrecht  und  Erbun- 
wiirdigkeit  fiir  das  Internationale  Privatrecht  einen  zwingenden  Character? 
13  Niemeyer,  87-91. 

Italy. — The  national  law  governs  with  respect  to  both  movables  and  immov- 
ables. Article  9,  Prel.  Disp.  Civ.  Code.  See,  also,  P.  Esperson,  Le  droit  in- 
ternational prive  dans  la  legislation  italienne,  8  Clunet,  216-230;  P.  Fiore, 
De  la  succession  des  etrangers  en  Italie,  30  Clunet,  42-70. 

In  regard  to  successions  and  wills,  see,  also,  Draft  of  Convention,  signed 
at  the  Hague  July  17,  1905,  Appendix  B,  I,  and,  in  general,  G.  Diena,  De  I'in- 
fluence  que  peut  exercer  sur  la  validite  d'une  substitution  un  changement  de 
nationalite  du  greve,  21  Clunet,  255-264 ;  A.  Laine,  De  la  forme  du  testament 
prive  en  droit  international,  3  Darras,  833-896 ;  F.  Surville,  La  rSgle  "locus 
regit  actum"  et  le  testament,  33  Clunet,  961-976. 


Ch.    5)  FOREIGN  ADMINISTRATIONS. 


CHAPTER  V. 


683 


if,b^f 


FOREIGN  ADMINISTRATIONS.  ^d  ^ 


SECTION  1.— EXECUTORS  AND  ADMINISTRATORS. 


yJli) 


^73  ^ 


VAUGHAN   V.   NORTHUP.  '^  fo^uJi^f  I 

(Supreme  Court  of  the  United  States,  1841.     15  Pet.  1,  10  L.  Ed.  630.)  \j  fjQ,'* 

Story,  J.^    This  is  an  appeal  from  a  decree  of  the  circuit  court  of  (k^uj/^ 

the  District  of  Columbia,  sitting  for  the  county  of  Washington,  dis-  J^^    Jj^ 

missing  a  bill  in  equity,  brought  by  the  appellants  against  the  appel-  ^^"^^^^ 

lees.     The  facts,  so  far  as  they  are  necessary  to  be  stated  upon  the  ^^       ^ 

present  occasion,  are:    That  one  James  Moody,  an  inhabitant  of  Ken-  OJl^        ^^ 
tucky,  died  in  that  state,  about  the  year  1803,  intestate,  without  leav-         jJ^^lf'^ 


ing  any  children;  that  in  May  or  June,  1833,  the  defendant,  Northrup 
obtained  letters  of  administration  upon  his  estate,  from  the  proper 
court  of  Jefferson  county,  in  Kentucky,  and  afterwards,  under  and  in 
virtue  of  those  letters  of  administration,  he  received  from  the  treasury 
of  the  United  States  the  sum  of  $5,215.56,  for  money  due  to  the  in- 
testate, or  his  representatives,  for  military  services  rendered  during 
the  Revolutionary  War.  The  present  bill  was  brought  by  the  ap- 
pellants, claiming  to  be  the  next  of  kin  and  heirs  of  the  intestate,  for 
their  distributive  shares  of  the  said  money,  against  Northup,  as  ad- 
ministrator; and  the  other  defendants,  who  are  made  parties,  are  as- 
serted to  be  adverse  claimants,  as  next  of  kin  and  distributees.  At 
the  hearing  of  the  cause  in  the  court  below,  the  same  having  been  set 
down  for  argument  upon  the  answer  of  Northup,  denying  the  jurisdic- 
tion of  the  court,  the  bill  was  ordered  to  be  dismissed  for  want  of  juris- 
diction; and  from  that  decree,  the  present  appeal  has  been  taken. 

Under  these  circumstances,  the  question  is  broadly  presented,  wheth- 
er an  administrator,  appointed  and  deriving  his  authority  from  another 
state,  is  liable  to  be  sued  here,  in  his  official  character,  for  assets  law- 
fully received  by  him,  under  and  in  virtue  of  his  original  letters  of 
administration.  We  are  of  opinion,  both  upon  principle  and  authori- 
ty, that  he  is  not.  Every  grant  of  administration  is  strictly  confined  in 
its  authority  and  operation  to  the  limits  of  the  territory  of  the  govern- 
ment which  grants  it;  and  does  not,  de  jure,  extend  to  other  countries. 
It  cannot  confer,  as  a  matter  of  right,  any  authority  to  collect  assets 

lA  part  of  the  opiuion  has  been  omitted. 


684: 


PARTICULAR  SUBJECTS. 


(Part  2 


of  the  deceased,  in  any  other  state;  and  whatever  operation  is  allow- 
ed to  it  beyond  the  original  territory  of  the  grant,  is  a  mere  matter 
of  comity,  which  every  nation  is  at  liberty  to  yield  or  to  withhold,  ac- 
cording to  its  own  policy  and  pleasure,  with  reference  to  its  own  in- 
stitutions and  the  interests  of  its  own  citizens.  On  the  other  hand, 
thp^j^rnipi^frafn^  i^..,e2C£liisively  bound  to  account__foi^ all  the  assets 
which  hQ.j:^ceived,  under  ajid-irLvirtue^^flliial^dministration,  to  the 
proper  tribimals  of  jthe  government  from  which^e^derivesjhisau- 
thoritv ;    aiicl  the  tribunalsTaf  nt^Sg'~5taterTTayiIno^right  to  interfere 


with  or  to  control  the  application  of  those  assets  according  to  the  lex 
locL.  Hence,  it  has  becoine^aiolestablished  doctrine,  that  an  administra- 
tor,  appointed  in  one^  stale,  cannot.  in~liis  otticial  capaatv.  ,Sii£-fQr  |nv 
debts  due  to  his  mtestate,  in  tHe"cburts  ^FanotheFTtate ;  and  thai  he 
is  not  liabTe"to"^e^sue J  m  thH^]cipariiy^!Iin_the_couTts  of  the  latter, 
by  any  creditor,  for  any  debts  due  there  by  his  intestate.  The  authori- 
ties to  this  effect  are  exceedingly  numerous,  both  in  England  and 
America;  but  it  seems  to  us  unnecessary,  in  the  present  state  of  the 
law,  to  do  more  than  to  refer  to  the  leading  principle  as  recognized 
by  this  court,  in  Fenwick  v.  Sears,  1  Cranch,  259,  2  L.  Ed.  101,  Dix- 
on's Executors  v.  Ramsay's  Executors,  3  Cranch,  319,  2  L.  Ed.  453, 
and  Kerr  v.  Moon,  9  Wheat.  565,  6  L.  Ed.  161. 

[In  the  remaining  portion  of  the  opinion  the  court  held  that  debts 
due  from  the  government  of  the  United  States  have  no  locality  at  the 
seat  of  government,  and  that  Act  Cong.  June  24,  1812,  c.  106,  2  Stat. 
755,  did  not  authorize  the  maintenance  of  the  suit.]^ 


JOHNSON  V.  POWERS. 

(Supreme  Court  of  the  United  States,  ISOl.     139  U.  S.  156,  11  Sup.  Ct.  525, 

35  L.   Ed.  112.) 

Gray,  J.  This  is  a  bill  in  equity  filed  in  the  Circuit  Court  of  the 
United  States  for  the  Northern  District  of  New  York  by  George  K. 
Johnson,  a  citizen  of  Michigan,  in  behalf  of  himself  and  of  all  other 
persons  interested  in  the  administration  of  the  assets  of  Nelson  P. 
Stewart,  late  of  Detroit,  in  the  county  of  Wayne  and  state  of  Michi- 
gan, against  several  persons,  citizens  of  New  York,  alleged  to  hold  real 
estate  in  New  York  under  conveyances  made  by  Stewart  in  fraud  of 

2  See,  in  general,  45  Am.  St.  Rep.  664-674. 

Nor  will  submission  on  the  part  of  the  administrator  to  the  jurisdiction  of 
the  foreign  court  give  extraterritorial  effect  to  the  decree.  Judy  v.  Kelley,  11 
111.  211,  50  Am.  Dec.  455  (1840) ;  Jefferson  v.  Beall,  117  Ala.  436,  23  South.  44, 
67  Am.  St.  Rep.  177  (1898);  Greer  v.  Ferguson,  56  Ark.  324,  19  S.  W.  966 
(1892).    But  see  Davis  v.  Connelly's  Executors,  4  B.  Mon.  (Ky.)  136  (1843). 

It  has  been  held  that  in  the  absence  of  statute  a  foreign  administrator  can- 
not sue,  even  if  there  are  no  local  creditors.  Mansfield  v.  McFarland,  202  Pa. 
173,  51  Atl.  763  (1902). 


Ch.  5) 


FOREIGN   ADMINISTRATIONS. 


685 


his  creditors.  The  bill  is  founded  upon  the  jurisdiction  in  equity  of 
the  Circuit  Court  of  the  United  States,  independent  of  statutes  or 
practice  in  any  state,  to  administer,  as  between  citizens  of  differ- 
ent states,  any  deceased  person's  assets  within  its  jurisdiction.  Payne 
V.  Hook,  7  Wall.  425,  19  L.  Ed.  2G0;  Kennedy  v.  Creswell,  101 
U.  S.  641,  25  L.  Ed.  1075.  At  the  threshold  of  the  case  we  are 
met  by  the  question  whether  the  plaintiff  shows  such  an  interest 
in  Stewart's  estate  as  to  be  entitled  to  invoke  the  exercise  of  this 
jurisdiction.  He  seeks  to  maintain  his  bill  both  as  administrator 
and  as  a  creditor  in  behalf  of  himself  and  all  other  creditors  of 
Stewart.  The  only  evidence  that  he  was  either  administrator  or 
creditor  is  a  duly  certified  copy  of  a  record  of  the  probate  court  of  the 
county  of  Wayne  and  state  of  Michigan,  showing  his  appointment  by 
that  court  as  administrator  of  Stewart's  estate;  the  subsequent  ap- 
pointment by  that  court,  pursuant  to  the  statutes  of  Michigan,  of  com- 
missioners to  receive,  examine,  and  adjust  all  claims  of  creditors 
against  the  estate;  and  the  report  of  those  commissioners,  allowing 
several  claims,  including  one  to  this  plaintiff,  "George  K.  Johnson, 
for  judgments  against  claimant  in  Wayne  circuit  court  as  indorser," 
and  naming  him,  as  administrator,  as  the  party  objecting  to  the  al- 
lowance of  all  the  claims.  The  plaintiff  certainly  cannot  maintain  this 
bill  as  administrator  of  Stewart,  even  if  the  bill  can  be  construed  as 
framed  in  that  aspect,  because  he  admits  that  he  has  never  taken  out 
letters  of  administration  in  New  York;  and  the  letters  of  administra- 
tion granted  to  him  in  Michigan  confer  no  power  beyond  the  limits 
of  that  state,  and  cannot  authorize  him  to  maintain  any  suit  in  the 
courts,  either  state  or  national,  held  in  any  other  state.  Stacy  v. 
Thrasher,  6  How.  44,  58,  12  L.  Ed.  337 ;  Noonan  v.  Bradley,  9  Wall. 
394,  19  L.  Ed.  757. 

The  question  remains  whether,  as  against  these  defendants,  the 
plaintiff  has  proved  himself  to  be  a  creditor  of  Stewart.  The  only 
evidence  on  this  point,  as  already  observed,  is  the  record  of  the  pro- 
ceedings before  commissioners  appointed  by  the  probate  court  in 
Michigan.  It  becomes  necessary,  therefore,  to  consider  the  nature  and 
the  eft'ect  of  those  proceedings.  They  were  had  under  the  provisions 
of  the  General  Statutes  of  A'lichigan  (2  How.  Ann.  St.  §§  5S88-5906), 
"the  general  idea"  of  which,  as  stated  by  Judge  Cooley,  "is  that 
all  claims  against  the  estates  of  deceased  persons  shall  be  duly  proved 
before  commissioners  appointed  to  hear  them,  or  before  the  probate 
court  when  no  commissioners  are  appointed.  The  commissioners  act 
judicially  in  the  allowance  of  claims,  and  the  administrator  cannot  bind 
the  estate  by  admitting  their  correctness,  but  must  leave  them  to  be 
proved  in  the  usual  mode."  Clark  v.  Davis,  32  Mich.  154,  157.  The 
commissioners,  when  once  appointed,  become  a  special  tribunal,  which, 
for  most  purposes,  is  independent  of  the  probate  court,  and  from  which 
either  party  may  appeal  to  the  circuit  court  of  the  county;  and,  as 
against   an  adverse   claimant,   the   administrator,   general   or   special, 


Jbuttcu  ^ 


686  PARTICULAR  SUBJECTS.  (Part  2 

represents  the  estate,  both  before  the  commissioners  and  upon  the 
appeal.  2  How.  Ann.  St.  §§  5907-5917;  Lothrop  v.  Conely,  39 
Mich.  757.  The  decision  of  the  commissioners,  or  of  the  circuit 
court  on  appeal,  should  properly  be  only  an  allowance  or  disallowance 
of  the  claim,  and  not  in  the  form  of  a  judgment  at  common  law. 
La  Roe  v.  Freeland,  8  Mich.  531.  But,  as  between  the  parties 
to  the  controversy,  and  as  to  the  payment  of  the  claim  out  of  the 
estate  in  the  control  of  the  probate  court,  it  has  the  effect  of  a 
judgment,  and  cannot  be  collaterally  impeached  by  either  of  those 
parties.  Shurbun  v.  Hooper,  40  Mich.  503.  Those  statutes  pro- 
vide that,  when  the  administrator  declines  to  appeal  from  a  deci- 
sion of  the  commissioners,  any  person  interested  in  the  estate  may 
appeal  from  that  decision  to  the  circuit  court ;  and  that,  when  a  claim 
of  the  administrator  against  the  estate  is  disallowed  by  the  commis- 
sioners, and  he  appeals,  he  shall  give  notice  of  his  appeal  to  all  con- 
cerned by  personal  service  or  by  publication.  2  How.  Ann.  St.  §§ 
5916,  5917.  It  may  well  be  doubted  whether,  within  the_jpi£it_and 
intent  of  these^rovisionsTthe  administrator,  when  hejsjlsojh&-elatfft— 
ant,  is  not  bound  to  give  notice  to  other  persons  mterested  in  the  es- 
tate,  in  order  that  they  may  have~~iiii  uppuiLtTTTrEy  to  contest  his  claim 
before  the  conimissioners ;  and  whetner  an  allowance  ot  his  claim,  as 
in  this  case,  in  the  absence  of  any  impartial  representative  of  the  es- 
tate, and  of  other  persons  interested  therein,  can  be  of  any  binding 
effect,  even  in  Michigan.  See  Lothrop  v.  Conely,  above  cited.  But 
we  need  not  decide  that  point,  because  upon  broader  grounds  it  is 
quite  clear  that  those  proceedings  are  incompetent  evidence  in  this 
suit  and  against  these  defendants  that  the  plaintiff  is  a  creditor  of 
Stewart  or  of  his  estate.  A  judgment  in  rem  binds  only  the  property 
within  the  control  of  the  court  which  rendered  it,  and  a  judgment  in 
personam  binds  only  the  parties  to  that  judgment,  and  those  in  privi- 
ty with  them.  A  judgment  recovered  against  the  administrator  of  a 
deceased  person  in  one  state  is  no  evidence  of  debt  in  a  subsequent 
suit  by  the  same  plaintiff  in  another  state,  either  against  an  adminis- 
trator, whether  the  same  or  a  different  person,  appointed  there,  or 
against  any  other  person  having  assets  of  the  deceased.  Aspden  v. 
Nixon,  4  How.  467,  11  L.  Ed.  1059 ;  Stacy  v.  Thrasher,  6  How.  44, 
12  L.  Ed.  337 ;  McLean  v.  Meek,  18  How.  16,  15  L.  Ed.  277 ;  Low  v. 
Bartlett,  8  Allen  (Mass.)  259.  In  Stacy  v.  Thrasher,  in  which  a  judg- 
ment recovered  in  one  state  against  an  administrator  appointed  in  that 
state  upon  an  alleged  debt  of  the  intestate  was  held  to  be  incompetent 
evidence  of  the  debt  in  a  suit  brought  by  the  same  plaintiff  in  the  Cir- 
cuit Court  of  the  United  States  held  within  another  state  against  an 
administrator  there  appointed  of  the  same  intestate,  the  reasons 
given  by  Mr.  Justice  Grier  have  so  strong  a  bearing  on  the  case  be- 
fore us,  and  on  the  argument  of  the  appellant,  as  to  be  worth  quoting 
from:  "The  administrator  receives  his  authority  from  the  ordinary' 
or  other  officer  of  the  government  where  the  goods  of  the  intestate 


Ch.    5)  FOREIGN   ADMINISTRATIONS.  687 

are  situate ;  but,  coming  into  such  possession  by  succession  to  the 
intestate,  and  incumbered  with  the  duty  to  pay  his  debts,  he  is  con- 
sidered in  law  as  in  privity  with  him,  and  therefore  bound  or  estopped 
by  a  judgment  against  him.  Yet  his  representation  of  his  intestate 
is  a  quahfied  one,  and  extends  not  beyond  the  assets  of  which  the  ordi- 
nary had  jurisdiction."  6  How.  58,  13  L.  Ed.  337.  In  answering  the 
objection  that  to  apply  these  principles  to  a  judgment  obtained  in 
another  state  of  the  Union  would  be  to  deny  it  the  faith  and  credit 
and  the  effect  to  which  it  was  entitled  by  the  Constitution  and  laws 
of  the  United  States,  he  observed  that  it  was  evidence,  and  conclusive 
by  way  of  estoppel,  only  between  the  same  parties  or  their  privies, 
or  on  the  same  subject-matter  when  the  proceeding  was  in  rem,  and 
that  the  parties  to  the  judgments  in  question  were  not  the  same;  nei- 
ther were  they  privies,  in  blood,  in  law,  or  by  estate;  and  proceed- 
ed as  follows :  "An  administrator  under  grant  of  administration 
in  one  state  stands  in  none  of  these  relations  to  an  administrator 
in  another.  Each  is  privy  to  the  testator,  and  would  be  estopped 
by  a  judgment  against  him;  but  they  have  no  privity  with  each 
other,  in  law  or  in  estate.  They  receive  their  authority  from  dif- 
ferent sovereignties,  and  over  different  property.  The  authority 
of  each  is  paramount  to  the  other.  Each  is  accountable  to  the  or- 
dinary from  whom  he  receives  his  authority.  Nor  does  the  one 
come  by  succession  to  the  other  into  the  trust  of  the  same  property, 
incumbered  by  the  same  debts."  6  How.  59,  60,  12  L.  Ed.  337.  "It 
_is  for  those  who  assert  this  privity  to  show  wherein  it  lies,  and  the 
argument  for  it  seems  to  be  this:  That  the  judgment  against  the 
administrator  is  against  the  estate  of  the  intestate,  and  that  his  es- 
tate, wheresoever  situate,  is  liable  to  pay  his  debts.  Therefore  the 
plaintiff,  having  once  established  his  claim  against  the  estate  by  the 
judgment  of  a  court,  should  not  be  called  on  to  make  proof  of  it  again. 
This  argument  assumes  that  the  judgment  is  in  rem,  and  not  in  per- 
sonam, or  that  the  estate  has  a  sort  of  corporate  entity  and  unity. 
But  this  is  not  true,  either  in  fact  or  in  legal  construction.  The  judg- 
ment  is  against  the  person  of  the  administrator  that  he  shall  pay  the 
debt  of  the  intestate  out  oFTHefunds  committed  to  his  care.  If  there 
be  anqthgr'gdmlhTstrator  in  aTnother  state^_liable  to  pay  the  same  debt, 
he  may  be  subjected  to  a  like  judgment  upon  the  same  demand,  but 
the  assets  in  his  hands  "cannot  be  aft'ectedby  a  judgment  to  whichhe 
is  per5DiiatTy"'a' stranger."  "The  laws  and  courts  of  a  state  can  only 
affecF  persons  and  things  within  their  jurisdiction.  Consequently, 
both  as  to  the  administrator  and  the  property  confided  to  him,  a  judg- 
ment in  another  state  is  res  inter  alios  acta.  It  cannot  be  even  prima 
facie  evidence  of  a  debt;  for,  if  it  have  any  effect  at  all,  it  must  be  as 
a  judgment,  and  operate  by  way  of  estoppel."  6  How.  60,  61,  12  L. 
Ed.  337.  In  Low  v.  Bartlett,  above  cited,  following  the  decisions 
of  this  court,  it  was  held  that  a  judgment  allowing  a  claim  against 
the  estate  of  a  deceased  person  in  Vermont,  under  statutes  similar 


688  PARTICULAR  SUBJECTS.  (Part  2 

to  those  of  Michig-an,  was  not  competent  evidence  of  debt  in  a  suit 
in  equity  brought  in  Massachusetts  by  the  same  plaintiff  against  an 
executor  appointed  there,  and  against  legatees  who  had  received  money 
from  him;  the  court  saying:  "The  judgment  in  Vermont  was  in  no 
sense  a  judgment  against  them,  nor  against  the  property  which  they 
had  received  from  the  executor."  8  Allen,  26G.  In  the  case  at  bar, 
the  allowance  of  Johnson's  claim  by  the  commissioners  appointed  by 
the  probate  court  in  Michigan,  giving  it  the  utmost  possible  effect, 
faith,  and  credit,  yet,  if  considered  as  a  judgment  in  rem,  bound  only 
the  assets  within  the  jurisdiction  of  that  court;  and,  considered  as  a 
judgment  inter  partes,  bound  only  the  parties  to  it  and  their  privies. 
It  was  not  a  judgment  against  Stewart  in  his  lifetime,  nor  against 
his  estate,  wherever  it  might  be,  but  only  against  his  assets  and  his  ad- 
ministrator in  Michigan.  The  only  parties  to  the  decision  o^  the  com- 
missioners were  Johnson  in  his  personal  capacity,  as  claimant,  arid 
Johnson  in  his  representative  capacity,  as  administrator  of  those  as- 
sets, as  defendant.  The  present  defendants  were  not  parties  to  that 
judgment,  nor  in  privity  with  Johnson  in  either  capacity.  If  any  other 
claimant  in  those  proceedings  had  been  the  plaintiff  here,  the  allowance 
of  his  claim  in  Michigan  would  have  been  no  evidence  of  any  debt  due 
to  him  from  the  deceased  in  this  suit  brought  in  New  York  to  recover 
alleged  property  of  the  deceased  in  New  York  from  third  persons, 
none  of  whom  were  parties  to  those  proceedings,  or  in  privity  with 
either  party  to  them.  The  fact  that  this  plaintiff  was  himself  the  only 
party  on  both  sides  of  those  proceedings  cannot,  to  say  the  least,  give 
the  decision  therein  any  greater  effect  against  these  defendants.  The 
objection  is  not  that  the  plaintiff  cannot  maintain  this  bill  without  first 
recovering  judgment  on  his  debt  in  New  York,  but  that  there  is  no 
evidence  whatever  of  his  debt,  except  the  judgment  in  Michigan,  and 
that  that  judgment,  being  res  inter  alios  acta,  is  not  competent  evi- 
dence against  these  defendants.  This  objection  being  fatal  to  the  main- 
tenance of  this  bill,  there  is  no  occasion  to  consider  the  other  ques- 
tions, of  law  or  of  fact,  mentioned  in  the  opinion  of  circuit  court,  and 
discussed  at  the  bar.    Decree  affirmed.* 

3  The  dissenting  opinion  of  Brown,  J.,  lias  been  omitted. 

Contra,  semble,  as  to  executors.  Hill  v.  Tuclier,  13  How.  (U.  S.)  458,  14  L. 
Ed.  223  (1S51) ;  Goodall  v.  Tucker,  13  How.  (U.  S.)  469,  14  L.  Ed.  227  (1851) ; 
Garland  v.  Garland,  84  Va.  181,  4  S.  E.  334  (1SS7).  Compare  Carpenter  v. 
Strange,  141  U.  S.  87,  11  Sup.  Ct.  900,  35  L.  Ed.  640  (1891). 

Accord:  Johnston  v.  McKinnon.  129  Ala.  223,  29  South.  696  (1901);  State 
V.  Fulton  (Tenn.  Ch.  App.)  49  S.  W.  297  (1898).  Nor  is  there  privity  between 
the  executor  and  an  administrator  with  the  will  annexed  appointed  in  anoth- 
er state,  brown  v.  Fletcher,  210  U.  S.  82,  28  Sup.  Ct.  702,  52  L.  Ed.  966 
(1908). 

For  the  same  reason  a  judgment  against  an  ancillary  administrator  in  a 
suit  brought  by  him  is  not  a  bar  to  a  suit,  founded  on  the  same  cause  of 
action  brought  by  an  ancillary  administrator  of  the  estate  in  another  ju- 
risdiction. Ingersoll  v.  Coram,  211  U.  S.  335,  29  Sup.  Ct  92,  53  L.  Ed.  208 
(1908). 

See,  in  general,  27  L.  R.  A.  101-117. 


Ch.  5)  FOREIGN   ADMINISTRATIONS.  689 

FALKE  V.  TERRY. 

(Supreme  Court  of  Colorado,  1903.    32  Colo.  85,  75  Pac.  425.) 

CAMPBEI.L,  C.  J.*  The  material  facts,  as  set  forth  in  the  complaint, 
are  that  plaintiffs  are  children  and  heirs  at  law  of  Juan  B.  C.  Phillips, 
deceased.  In  1892  their  father  died  in  the  city  of  Brooklyn,  N.  Y., 
leaving  a  will,  in  which  the  defendant,  Amanda  L.  Falke,  formerly 
wife  of  Mr.  Phillips,  was  named  executrix,  and  John  H.  Springer 
executor.  The  will  was  duly  presented  for  and  admitted  to  probate 
in  the  surrogate's  court  of  the  city  of  Brooklyn,  and  letters  testamen- 
tary issued  to  defendant  as  executrix  (the  executor  not  qualifying), 
and  thereupon  she  took  possession  of  all  the  property  of  the  estate, 
and  thereafter  has  had  exclusive  possession  of  it.  No  inventory  of  the 
assets  of  the  estate  was  filed  in  the  surrogate's  court,  and  no  account- 
ing thereto  by  the  executrix  has  ever  been  made.  Soon  after  the  tes- 
tator's death  the  defendant  married  Henry  Falke,  and  in  the  year  1894 
removed  with  him  to  the  state  of  Colorado,  bringing  with  her  funds 
and  assets  of  the  estate  of  great  value.  Their  father's  will,  although 
it  gave  to  the  wife,  the  defendant  herein,  a  life  interest  in  all  of  the 
property,  with  the  power  to  sell  and  dispose  of  the  same,  or  any  part 
thereof,  as  she  deemed  best,  during  such  period  of  time,  further  pro- 
vided that,  in  case  she  married  again,  his  personal  representatives 
should  set  apart  and  invest  in  the  names  of  his  children,  including  these 
plaintiffs,  such  parts  of  the  estate  as  would  have  been  theirs  by  law 
in  case  he  died  intestate,  the  same  to  become  their  absolute  property 
when  they  respectively  reached  the  age  of  25  years.  Disregarding  the 
provisions  of  the  will  and  her  duty  as  executrix,  the  defendant  denies 
the  right  of  plaintiffs  to  any  share  of  the  estate  of  their  father,  al- 
though she  married  again  after  his  death,  and  long  before  the  action 
was  begun,  and  has  converted  to  her  own  use  a  large  part  of  the  prop- 
erty of  the  estate  belonging  to  them,  and  holds  the  same  in  this  state 
in  fraud  of  their  rights.  There  are  other  allegations  of  mistreatment 
of  the  plaintiffs  by  defendant,  a  denial  of  their  legitimacy,  and  certain 
other  allegations,  which  are  not  material  to  this  decision.  The  court 
assumed  jurisdiction  of  the  cause,  finding  the  issues  in  favor  of  the 
plaintiffs,  adjudging  title  to  certain  real  estate  situate  in  the  state  of 
New  York,  standing  in  defendant's  name  upon  the  records,  to  be  the 
property  of  the  plaintiffs,  and  decreed  that  the  same  should  be  held 
by  her  in  trust  for  them.  The  cause  was  then  referred  to  a  referee 
to  take  an  accounting  of  defendant's  acts  and  doings  as  executrix  of 
the  estate  from  the  time  she  took  possession  and  assumed  control  of 
the  assets.  The  referee  found  that  defendant  was  indebted  to  the 
plaintiffs  in  the  sum  of  about  $3,400,  and  his  report  was  confirmed  by 
the  court,  then  presided  over  by  a  different  judge  from  the  one  who 

*A  part  of  the  opinion  has  been  omitted. 
LOB.CoNF.L.— 44 


^ 


690  PARTICULAR  SUBJECTS.  (Part  2 

ordered  the  accounting,  and  a  personal  judgment  against  the  defend- 
ant was  rendered  for  that  sum  in  favor  of  plaintiffs.  The  defendant 
brings  the  case  here  by  appeal. 

1.  The  general  doctrine  is  that  executors  and  administrators  are 
not  liable  to  actions  as  such  in  a  state  where  they  have  obtained  no 
letters  of  administration,  but  that  they  are  amenable  for  their  execu- 
torial acts  only  to. the  proper  tribunals  of  the  state  from  which  they 
obtained  their  appointment.  The  appellant  insists  that  this  doctrine 
applies  to  this  case,  and  that  the  court  is  wholly  without  jurisdiction 
of  the  subject-matter.  The  general  rule  for  which  appellant  contends 
is  sustained  by  a  large  number  of  authorities,  among  which  are  Wood- 
ruff V.  Young,  43  Mich.  548,  6  N.  W.  85;  Spoon  v.  Baxter,  31  Mich. 
279;  Story  on  Conflict  of  Laws  (7th  Ed.)  §  514;  1  Woerner  on  The 
American  Law  of  Administration  (2d.  Ed.)  c.  17,  and  additional  au- 
thorities therein  cited.  If  this  action  were  against  the  defendant,  in 
her  capacity  as  executrix,  to  enforce  the  performance  of  her  official 
duty,  it  would  not  lie.  Appellant  misconceives  the  real  scope  of  the 
action.  It  is  based  upon  the  proposition  that  a  trust  fund  in  the  pos- 
session of  a  defendant  has  been  improperly  used,  and  is  in  danger  of 
being  still  further  misapplied,  and  the  protection  of  the  court  is  sought 
by  the  ones  entitled  thereto  in  order  to  protect  it  from  loss.  In  his 
valuable  work  on  the  Conflict  of  Laws  at  section  514b,  Judge  Story 
declares  that  the  doctrine  is  fully  established  that,  if  a  foreign  execu- 
tor or  administrator  brings  or  transmits  to  another  state  property 
which  he  has  received  under  administration  abroad,  or  if  he  is  person- 
ally present,  he  is  not,  either  personally  or  in  his  representative  capaci- 
ty, liable  to  a  suit  in  such  other  state.  Several  cases  are  cited  in  its 
support.  Notwithstanding  this  opinion  of  the  learned  jurist,  we  think 
the  principle  upon  which  the  jurisdiction  of  the  court  in  this  case  rests 
has  been  firmly  established  by  many  respectable  authorities.  In  the 
case  of  Tunstall  v.  Pollard's  Adm'r,  11  Leigh  (Va.)  1,  in  an  able  opin- 
ion by  Tucker,.  P.  J.,  in  which  he  reviews  and  comments  upon  the 
authorities  referred  to  by  Judge  Story,  the  conclusion  was  reached  that 
an  executor  who  has  qualified  and  received  assets  in  a  foreign  country 
and  brought  them  into  the  state  of  Virginia  is  liable  to  be  sued  and  to 
be  compelled  to  account  in  her  courts,  though  he  never  qualified  as 
executor  in  Virginia,  and  may  have  received  no  assets  there.  In  Hed- 
enberg  v.  Hedenberg,  46  Conn,  30,  33  Am.  Rep.  10,  it  was  held  that  a 
foreign  executor  who  comes  into  another  state  to  reside,  and  brings 
with  him  property  belonging  to  the  estate,  cannot  be  made  liable  in 
the  latter  state,  upon  suit  of  a  local  creditor  of  the  testator,  to  the 
extent  of  the  property  brought  therein,  but  may  be  to  the  extent  of 
the  property  already  there.  This,  in  a  measure,  sustains  the  text  of 
Judge  Story.  The  leading  case  in  America  in  support  of  the  principle 
upon  which  jurisdiction  herein  can  be  maintained  is  McNamara  v. 
Dwyer,  7  Paige  (N.  Y.)  239,  32  Am.  Dec.  627.  Others  are  Montal- 
van'v.  Clover,  32  Barb.   (N.  Y.)  190;    Patton  v.  Overton,  27  Term. 


Ch.  5)  FOREIGN    ADMINISTRATIONS.  691 

192;  Colbert  v.  Daniel,  32  Ala.  314;  Dillard  v.  Harris,  2  Tenn.  Ch. 
196 ;  Bryan  v.  McGee,  2  Wash.  C.  C.  337,  Fed.  Cas.  No.  2,066 ;  Sprad- 
dling v.  Pipkin,  15  Mo.  118;  Clopton  v.  Booker,  27  Ark.  482;  Mc- 
Cabe  V.  Lewis,  76  Mo.  296.  Other  authorities  are  collected  in  8  Enc. 
PI.  &  Pr.  714  et  seq. ;  Schouler's  Executors  &  Administrators  (2d  Ed.) 
§173;  1  Woerner's  Amer.  Law  of  Adm'n  (2d  Ed.)  §  164.  The  com- 
plaint therefore  stated  a  case  within  the  jurisdiction  of  the  district 
court. 

It  was  necessary,  however,  for  the  plaintififs,  among  other  things, 
to  prove  that  the  defendant  brought-  into  this  state  funds  and  assets 
belonging  to  the  estate  of  the  testator.  The  only  witness  produced 
by  plaintiffs  upon  this  controverted  issue  was  the  defendant  herself. 
Her  testimony  does  not  establish  it.  Indeed,  it  appears  therefrom  that 
she  brought  no  property  belonging  to  the  estate  from  New  York  to 
Colorado,  unless  it  is  a  gold  watch,  which,  some  time  before  the  hear- 
ing, had  been  returned  to  the  former  state,  and  concerning  whose  own- 
ership at  the  time  there  was  a  dispute.  If  the  defendant  has  possession 
or  control  of  any  property  belonging  to  the  estate,  it  is,  for  aught  that 
appears  from  this  record,  in  bank,  or  in  the  form  of  investments  or 
real  estate,  all  in  the  state  of  New  York.  In  her  brief  appellant  chal- 
lenged appellees  to  point  out  in  the  record  any  evidence  whatever  that 
any  of  the  assets  of  the  estate  was  brought  into  this  state  by  the  exe- 
cutrix. In  their  brief  appellees  have  not  referred  to  any  portion  of 
the  record  where  this  proof  is  disclosed.  Considering  the  voluminous 
record,  we  would  have  been  justified  in  assuming  for  the  purposes  of 
the  opinion  that  none  such  exists.  We  have,  however,  examined  the 
abstract,  and  are  unable  to  find  sufficient  evidence  of  this  essential 
fact  upon  which  the  jurisdiction  of  the  court  depended.  Proof  not 
being  made  of  this  essential  fact,  necessary  in  this  kind  of  a  case  to 
give  the  courts  of  this  state  jurisdiction,  it  follows  that  the  trial  court, 
upon  the  showing  made,  should  have  dismissed  the  action.     *     *     *5 


MOORE  V.  PETTY.  ^vv*^ 


(Circuit  Court  of  Appeals  of  Uuited  States,  1905.     135  Fed.  GGS,  GS  C.  C.  A. 

30G.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Iowa. 

Hook,  Circuit  Judge.  '  The  assignments  of  error  present  but  four 
propositions  which  require  consideration :  Had  plaintiffs,  as  foreign 
executors,  authority  to  maintain  the  action  in  the  state  of  lowa?*^ 

5  See,  also,  Keiningham  v.  Keiningham's  Ex'r  (Ky.)  71  S.  W.  497  '(1903) ; 
Courtney  v.  Pradt  (C.  C.  A.)  160  Fed.  561  (1908). 

6  The  statement  of  facts  lias  been  omitted.  Only  so  much  of  the  opinioa 
is  given  as  relates  to  this  point. 


692  PARTICULAR  SUBJECTS.  .  (Part  2 

Did  the  Circuit  Court  commit  error  in  permitting  the  plaintiffs  lo 
amend  their  petition  on  the  eve  of  trial  ?  Was  the  fact  that  no  writing 
in  the  form  of  a  verdict  was  signed  by  or  on  behalf  of  the  jury  fatal 
to  the  judgment?  Did  the  Circuit  Court  err  in  directing  a  verdict 
for  the  plaintiffs  upon  the  evidence  adduced  at  the  trial? 

1.  The  will  of  the  testatrix  was  duly  probated  in  Allegheny  coun- 
ty, Pa.,  and,  the  plaintiffs  having  qualified  as  executors,  letters  testa- 
mentary were  there  issued  to  them  in  due  course.  An  attested  copy 
of  the  will  and  a  transcript  of  the  probate  proceedings  were  recorded 
in  the  county  in  Iowa  in  which  the  land  was  situated.  By  an  order 
of  the  probate  court  in  Iowa  the  same  executors  were  appointed  as 
such  in  that  state,  but  they  did  not  there  qualify  or  give  bond  or 
receive  letters  testamentary.  We  will  not  pause  to  consider  whether 
the  language  of  the  order  in  Iowa  invested  the  executors  with  a  dom- 
estic character,  and  whether  the  failure  to  qualify,  give  bond,  and 
take  out  letters  testamentary  in  that  state  can  be  urged  in  this  proceed- 
ing. It  may  be  assumed  for  the  purposes  of  this  cause  that  they  were 
purely  foreign  executors ;  possessing,  however,  under  an  express 
provision  of  a  statute  of  Iowa,  the  power  to  sell  and  convey  the  real 
property  of  the  testatrix  in  that  state.  Proceeding  with  this  assump- 
tion, did  they  have  the  right  to  maintain  the  action  in  Iowa  for  the 
recovery  from  their  agents  of  the  proceeds  of  a  sale  of  land  made 
under  their  authority?  This  question  was  presented  by  the  defend- 
ants' answer,  wherein  it  was  alleged  that  the  plaintiffs  were  appoint- 
ed and  qualified  as  executors  only  in  the  state  of  Pennsylvania,  and 
that  they  had  never  been  qualified  or  authorized  to  act  as  such  under 
the  laws  of  the  state  of  Iowa.  The  general  rule  undoubtedly  is  that 
an  executor  or  administrator  in  his  representative  capacity  cannot 
maintain  an  action  in  the  courts  of  any  sovereignty  other  than  that 
under  whose  laws  he  was  appointed  and  qualified,  without  obtaining 
an  ancillary  grant  of  letters  in  the  state  where  the  action  is  brought 
unless  the  right  so  to  do  is  conferred  upon  him  by  the  law  of  the  fo- 
rum. Fenwick  v.  Sears'  Administrators,  1  Cranch,  259,  2  L.  Ed.  101 ; 
Dixon's  Executors  v.  Ramsay's  Executors,  2  Cranch,  319,  2  L.  Ed. 
453;  Doe  v.  McFarland,  9  Cranch,  151,  3  L.  Ed.  087;  Kerr  v.  Moon, 
9  Wheat.  565,  6  L.  Ed.  161;  Vaughan  v.  Northup,  15  Pet.  1,  5,  10 
L.  Ed.  639;  Noonan  v.  Bradley,  9  Wall.  394,  19  L.  Ed.  757;  John- 
son V.  Powers,  139  U.  S.  156,  11  Sup.  Ct.  525,  35  L.  Ed.  112.  The 
rule  as  to  foreign  guardians  is  the  same.  Morgan  v.  Potter,  157  U. 
S.  195,  15  Sup.  Ct.  590,  39  L.  Ed.  670.  But  whenever  the  cause  of 
action  declared  upon  by  the  foreign  executor  or  administrator  is  one 
.which  involves  an  assertion  of  his  own  right,  rather  than  one  of  the 
deceased,  or  which  has  accrued  directly  to  him  through  his  contract 
or  transaction,  and  was  not  originally  an  asset  of  the  estate  in  his 
charge  he  may  maintain  an  action  in  another  state  for  the  enforce- 
ment thereof,  although  express  authority  so  to  do  may  not  be  found 
in  a  statute  of  the  forum.    The  principle  underlying  this  modification 


Ch.  5)  FOREIGN    ADMINISTRATIONS.  G93 

of  the  general  rule  is  that,  when  the  cause  of  action  accrues  directly 
to  the  executor  or  administrator,  it  is  assets  in  his  hands  for  which 
he  may  sue  in  his  personal  capacity,  and,  if  he  sues  as  executor  or 
administrator,  the  words  so  describing  him  will  be  regarded  as  merely 
descriptive,  and  be  rejected  as  surplusage.  See  Talmage,  Adm'r,  v. 
Chapel,  16  Mass.  71,  in  which  it  was  held  that,  where  a  judgment  had 
been  recovered  in  New  York  by  an  administrator  appointed  in  that 
state,  he  could  bring  suit  upon  the  judgment  in  Massachusetts  without 
taking  out  letters  of  administration  there.  This  case  was  approved  in 
Biddle  v.  Wilkins,  1  Pet.  686,  692,  7  L.  Ed.  315.  See,  also,  Mowry 
V.  Adams,  14  Mass.  327;  Williams  v.  Moore,  9  Pick.  (Mass.)  432; 
Kane  v.  Paul,  14  Pet.  33,  42,  10  L.  Ed.  311.  The  general  rule  is 
recognized  and  applied  in  Iowa  (McClure  v.  Bates,  12  Iowa,  77), 
and  also  the  qualification  which  has  been  stated  (Greasons  v.  Davis,  9 
Iowa,  219;  Chamberlain  v.  Wilson,  45  Iowa,  149).  In  Greasons  v.  Da- 
vis the  plaintiffs,  foreign  executors,  brought  an  action  in  Iowa  upon 
transcripts  of  judgments  rendered  in  Pennsylvania.  One  of  the  defens- 
es was  that  the  plaintiffs  were  not  qualified  to  sue  when  the  action  was 
commenced.  It  appeared  that  the  plaintiffs'  testator  recovered  the 
judgments  in  Pennsylvania,  and,  having  died,  the  plaintiffs,  as  execu- 
tors, were  substituted  on  the  record,  which,  under  the  practice  in 
that  state,  put  them  in  the  position  of  judgment  creditors,  as  though 
they  had  been  the  original  plaintiffs  in  the  actions.  The  trial  court 
in  Iowa  was  requested  to  instruct  the  jury  that,  if  the  plaintiffs  were 
not  appointed  and  qualified  as  executors  under  the  laws  of  Iowa  at 
the  commencement  of  the  action,  they  could  not  recover.  A  refusal 
of  the  instruction  was  sustained  by  the  Supreme  Court  of  Iowa,  which 
said :  "If  they  had  not  been  made  parties  in  Pennsylvania,  they  could 
not  sue  without  taking  out  letters  here.  *  *  *  Other  reasons  may 
require  that  they  should  still  take  out  letters,  in  order  to  administer  his 
estate  here,  but  these  reasons  do  not  require  it  before  suing  in  the 
present  case." 

The  doctrine  is  more  clearly  illustrated  in  Chamberlain  v.  Wilson. 
Chamberlain,  a  citizen  of  Nebraska,  died,  holding  a  note  executed  by 
a  resident  of  Iowa,  and  secured  by  mortgage  upon  real  property  in 
the  latter  state.  Letters  of  administration  were  issued  in  Nebraska 
to  Van  Horn,  who,  in  his  representative  capacity,  took  possession  of 
the  note.  He  sent  the  note  for  collection  to  one  Wilson,  in  Iowa,  who 
collected  a  portion  thereof  from  the  maker,  and  had  the  money  in 
his  hands,  ready  to  pay  to  the  party  entitled.  A  son  of  the  deceased 
took  out  letters  of  administration  in  Iowa,  demanded  the  money  from 
Wilson,  and  sued  him  in  that  state  upon  his  refusal  to  pay.  The  Ne- 
braska administrator  filed  his  petition  as  intervener,  and  claimed  the 
money.  It  was  held  that,  as  the  foreign  administrator  took  actual 
possession  of  the  note  in  question,  embraced  it  in  his  inventory,  and 
was  charged  with  the  principal  and  primary  administration  of  the  es- 
tate, he  was  entitled  to  the  further  control  of  it  and  its  proceeds,  which 


694  PARTICULAR  SUBJECTS.  (Part  2 

he  did  not  lose  by  sending  it-  to  Iowa  for  collection.  The  court  said : 
"He  may,  in  our  opinion,  maintain  an  action  against  Wilson  for  the 
proceeds  of  the  note  collected  and  in  his  possession,  in  his  own  name, 
without  taking  out  new  letters  of  administration.  Probably,  under 
the  doctrine  of  McClure  v.  Bates,  12  Iowa,  77,  he  might  not  be  enabled 
to  maintain  an  action  as  administrator  for  the  collection  of  the  note. 
But  the  note  came  rightfully  into  his  possession  in  virtue  of  the  ad- 
ministration granted  in  Polk  county,  Nebraska.  It  was  collected,  and 
the  proceeds  were  in  the  hands  of  Wilson,  so  that  the  right  to  maintain 
an  action  upon  the  note  is  not  involved." 

This  doctrine  is  elsewhere  generally  recognized.  In  Trecothick  v. 
Austin,  4  Mason,  16,  Fed.  Cas.  No.  14,164,  Mr.  Justice  Story  said: 
"But  it  is  by  no  means  clear  that,  if  Trecothick's  executors  were  now 
suing,  they  would  be  obliged  in  the  present  case  to  take  out  letters 
of  administration  here  before  they  could  proceed.  The  demand  against 
Ivers  or  the  defendant  [J.  L.  Austin]  is  not  a  demand  which  accrued 
in  Trecothick's  lifetime,  or  out  of  any  contract  with  him.  But  it  is  a 
demand  which  accrued  under  agencies  created  by  them,  in  their  charac- 
ter as  executors,  after  the  death  of  Trecothick.  They  might,  under 
such  circumstances,  have  maintained  a  suit  in  their  own  names  for  an 
account  against  their  agent,  and  need  not  have  sued  in  their  repre- 
sentative capacity.  See  Cockerill  v.  Kynaston,  4  Term  R.  280 ;  Cowell 
V.  Watts,  6  East,  405 ;  Thompson  v.  Stent,  1  Taunt.  322 ;  Toll,  Ex'rs, 
bk.  3,  c.  10,  p.  439.  The  agent  would  be  estopped  to  deny  their  right 
to  receive  what  he  had  collected  in  virtue  of  their  authority.  See 
Nickolson  v.  Knowles,  5  Madd.  47;  10  Vin.  Abr.  'Estoppel,'  M; 
2  Comp.  11." 

In  Lawrence  v.  Lawrence,  3  Barb.  Ch.  (N.  Y.)  71,  Chancellor  Wal- 
worth said :  "As  a  general  rule,  a  foreign  executor  is  not  entitled  to 
sue  in  our  courts  without  having  proved  the  will  and  taken  out  letters 
testamentary  thereon  in  the  proper  probate  court  of  this  state.  These 
rules,  however,  are  only  applicable  to  suits  brought  by  executors  for 
debts  due  to  the  testator,  or  where  the  foundation  of  the  suit  was  based 
upon  some  transaction  with  the  testator  in  his  lifetime.  They  do  not 
prevent  a  foreign  executor  from  suing  in  our  courts  upon  a  contract 
made  with  himself  as  such  executor." 

To  the  same  effect  are  Fox  v.  Tay,  89  Cal.  339,  24  Pac.  855,  26  Pac. 
897,  23  Am.  St.  Rep.  474;  State  v.  Kaime,  4  Mo.  App.  479;  Tyer  v. 
Milling  Co.,  32  S.  C.  598,  10  S.  E.  1067;  Lewis  v.  Adams,  70  Cal. 
403,  11  Pac.  833,  59  Am.  Rep.  423 ;  Barton  v.  Higgins,  41  Md.  539 ; 
Rogers  v.  Hatch,  8  Nev.  35 ;  Wayland  v.  Porterfield's  Ex'r,  58  Ky. 
638;  Barrett  v.  Barrett,  8  Me.  346;  Trotter  v.  White,  18  Miss.  (10 
Smedes  &  M.)  607;  Johnston  v.  Wallis,  41  Hun,  420;  Terrell  v. 
Crane,  55  Tex.  81;  Griswold  v.  Railroad  Co.  (C.  C.)  9  Fed.  797,  798; 
Goodyear  v.  Hullihen,  2  Hughes,  492,  Fed.  Cas.  No.  5,573. 

In  the  case  at  bar  the  cause  of  action  did  not  exist  in  the  lifetime 
of  the  deceased.    The  proceeds  of  the  sale  sued  for  were  never  assets 


Ch.  5)  FOREIGN    ADMINISTRATIONS,  695 

of  her  estate.  The  employment  of  defendants  as  agents  to  make  the 
sale  of  the  land  was  by  the  plaintiffs  as  executors.  The  right  to  re- 
cover the  avails  of  any  such  sale  accrued  directly  to  the  plaintiffs,  and 
they  were  authorized  to  assert  it  in  Iowa  without  procuring  new  letters 
in  that  state.     *     *     *  ^' 


WILKINS  V.  ELLETT. 

(Supreme  Court  of  the  United  States,  1883.     108  U.   S.  2oG,  2  Sup.  Ct.  G41, 

27  L.  Ed.  718.) 

Gray,  J.     This  is  an  action  of  assumpsit  on  the  common  counts, 


i/^ 


brought  in  the  Circuit  Court  of  the  United  States  for  the  Western        fliA^^^^^"'^  *" 
District  of  Tennessee.     The  plaintiff  is  a  citizen  of  Virginia,  and  sues    j/:^-^^\^         dU^ 
as  administrator,  appointed  in  Tennessee,  of  the  estate  of  Thomas  N.  /^^^^"^'^     d^*^^ 
Ouarles.     The  defendant   is   a  citizen   of   Tennessee,   and   surviving 
partner  of  the  firm  of  F.  H.  Clark  &  Co.     The  answer  sets  up  that 
Ouarles  was  a  citizen  of  Alabama  at  the  time  of  his  death;    that  the 
sum  sued  for  has  been  paid  to  William  Goodloe,  appointed  his  ad-  ^ 

ministrator  in  that  state,  and  has  been  inventoried  and  accounted  for  ^^^'^ tAjyfl 

by  him  upon  a  final  settlement  of  his  administration ;    and  that  there  Lt^"^^^ 

are  no  creditors  of  Quarles  in  Tennessee.     The  undisputed  facts,  ap-     /f^ 
pearing  by  the  bill  of  exceptions,  are  as  follows  :  ^^         ^,^.    0^ ^ 

Quarles  was  born  at  Richmond,  Virginia,  in  1835.     In  1839  his  mo-  u)^'*^^  l^ir 

ther,  a  widow,  removed  with  him,  her  only  child,  to  Courtland,  Ala-  'fjfir^  i  ^{^/*^^ 
bama.    They  lived  there  together  until  1856,  and  she  made  her  home       .^  ,         "y>^ 
there  until  her  death,  in  1864.     In  1856  he  went  to  Memphis,  Tennes-     ^^^ (aM  *^ 
see,  and  there  entered  the  employment  of  F.  H.  Clarke  &  Co..  and  ^q^  A  4tf* 

continued  in  their  employ  as   a  clerk,  making  no  investments  him-  *"^ 

self,  but  leaving  his  surplus  earnings  on  interest  in  their  hands  until 


r?< 


7A  foreign  executor  or  administrator  may  sue  in  liis  own  name  for  the  re- 
covery of  property  which  has  vested  in  him  under  the  law  of  the  state  wherp  _  ^^^/^^^  ~  * 
he  was  appointed.  Patchen  v.  Wilson,  4  Hill  (N.  Y.)  57  (1842).  Or  upon  a 
negotiable  instrument  payable  to  bearer.  Sanford  v.  McCreedy,  28  Wis.  10?. 
(1871) ;  Barrett  v.  Barrett,  8  Me.  353  (1832).  Or  upon  a  judgment  recovered 
by  him  upon  a  cause  of  action  e.xisting  in  favor  of  the  deceased.  Talmage 
V.  Chapel,  16  Mass.  71  (1819);  Biddle  v.  Wilkins,  1  Pet.  686,  7  L.  Ed.  315 
(1828).  But  not  upon  a  .iudgment  ol)tained  by  the  deceased  himself.  jNIiller 
V.  Hoover,  121  Mo.  App.  568,  97  S.  W.  210  (1906).  He  may  likewise  execute 
as  persona  designata  a  power  of  sale  contained  in  a  mortgage.  Doolittle  v. 
Lewis,  7  John.  Ch.  (N.  Y.)  45,  11  Am.  Dec.  389  (1823) ;  Hayes  v.  Frey,  54  Wis. 
503,  11  N.  W.  695  (1882) ;  Thurber  v.  Carpenter,  18  R.  I.  782,  31  Atl.  5  (1895). 
Or  sell  real  estate  in  a  foreign  jurisdiction  as  donee  of  a  power  in  trust  con- 
tained in  a  will.  Green  v.  Alden,  92  Me.  177,  42  Atl.  358  (1898).  Or  sue  as 
donee  of  the  universality  of  the  personal  and  real  estate  of  a  testator  dis- 
posing of  his  property  under  the  civil  law.  Vauquelin  v.  Bouard,  15  C.  B. 
(N.  S.)  341  (1863). 

In  many  jurisdictions  a  foreign  executor  or  administrator  may  now  sue  in 
his  representative  capacity  under  such  terms  and  conditions  as  the  statutes 

of  the  state  may  prescribe.     See  Woeruer,  American  Law  of  Administration, 

§  163. 


696  PARTICULAR  SUBJECTS.  (Part  2 

January,  1866,  when  he  went  to  the  house  of  a  cousin  in  Courtland, 
Alabama,  and  while  there  died  by  an  accident,  leaving  personal  estate 
in  Alabama.  On  the  27th  of  January,  1866,  Goodloe  took  out  letters 
of  administration  in  Alabama,  and  in  February,  1866,  went  to  Mem- 
phis, and  there,  upon  exhibiting  his  letters  of  administration,  received 
from  defendant  the  sum  of  money  due  to  Quarles,  amounting  to  $3,- 
455.22  (which  is  the  same  for  which  this  suit  is  brought),  and  included 
it  in  his  inventory  and  in  his  final  account,  which  was  allowed  by  the 
probate  court  in  Alabama.  There  were  no  debts  due  from  Quarles  in 
Tennessee.  All  his  next  of  kin  resided  in  Virginia  or  in  Alabama; 
and  no  administration  was  taken  out  on  his  estate  in  Tennessee  until 
June,  1866,  when  letters  of  administration  were  there  issued  to  the 
plaintiff. 

There  was  conflicting  evidence  upon  the  question  whether  the  domi- 
cile of  Quarles  at  the  time  of  his  death  was  in  Alabama  or  in  Ten- 
nessee. The  jury  found  that  it  was  in  Tennessee,  under  instructions, 
the  correctness  of  which  we  are  not  prepared  to  affirm,  but  need  not 
consider,  because,  assuming  them  to  be  correct,  we  are  of  opinion  that 
the  court  erred  in  instructing  the  jury  that  if  the  domicile  was  in 
Tennessee  they  must  find  for  the  plaintiff ;  and  in  refusing  to  instruct 
them,  as  requested  by  the  defendant,  that  the  payment  to  the  Alabama 
administrator  before  the  appointment  of  one  in  Tennessee,  and  there 
being  no  Tennessee  creditors,  was  a  valid  discharge  of  the  defendant, 
without  reference  to  the  domicile. 

There  is  no  doubt  that  the  succession  to  the  personal  estate  of  a 
deceased  person  is  governed  by  the  law  of  his  domicile  at  the  time  of 
his  death;  that  the  proper  place  for  the  principal  administration  of 
his  estate  is  that  domicile;  that  administration  may  also  be  taken  out 
in  any  place  in  which  he  leaves  personal  property;  and  that  no  suit 
for  the  recovery  of  a  debt,  due  to  him  at  the  time  of  his  death,  can  be 
brought  by  an  administrator  as  such  in  any  state  in  which  he  has  not 
taken  out  administration.  But  the  reason  for  this  last  rule  is  the  pro- 
tection of  the  rights  of  citizens  of  the.state  in  which  the  suit  is  brought; 
and  the  objection  does  not  rest  upon  any  defect  of  the  administrator's 
title  in  the  property,  but  upon  his  personal  incapacity  to  sue  as  ad- 
ministrator beyond  the  jurisdiction  which  appointed  him. 

If  a  debtor,  residing  in  another  state,  comes  into  the  state  in  which 
the  administrator  has  been  appointed,  and  there  pays  him,  the  pay- 
ment is  a  valid  discharge  everywhere.  If  the  debtor,  being  in  that 
state,  is  there  sued  by  the  administrator,  and  judgment  recovered 
against  him,  the  administrator  may  bring  suit  in  his  own  name  upon 
that  judgment  in  the  state  where  the  debtor  resides.  Talmage  v. 
Chapel,  16  Mass.  71;    Biddle  v.  Wilkins,  1  Pet.  686,  7  L.  Ed.  315. 

The  administrator,  by  virtue  of  his  appointment  and  authority  as 
such,  obtains  the  title  in  promissory  notes  or  other  written  evidences 
of  debt,  held  by  the  intestate  at  the  time  of  his  death,  and  coming  to 
the  possession  of  the  administrator;    and  may  sell,  transfer,  and  in- 


Cll.  5)  FOREIGN    ADMINISTRATIONS.  G97 

dorse  the  same;  and  the  purchasers  or  indorsees  may  maintain  ac- 
tions in  their  own  names  against  the  debtors  in  another  state,  if  the 
debts  are  negotiable  promissory  notes,  or  if  the  law  of  the  state  in 
which  the  action  is  brought  permits  the  assignee  of  a  chose  in  action 
to  sue  in  his  own  name.  Harper  v.  Butler,  2  Pet.  239,  7  L.  Ed.  410; 
Shaw,  C.  J.,  in  Rand  v.  Hubbard,  4  Mete.  (Mass.)  252,  258-260; 
Petersen  v.  Chemical  Bank,  32  N.  Y.  21,  88  Am.  Dec.  298.  And  on  a 
note  made  to  the  intestate,  payable  to  bearer,  an  administrator  appoint- 
ed in  one  state  may  sue  in  his  own  name  in  another  state.  Barrett 
V.  Barrett,  8  Greenl.  (Me.)  353;  Robinson  v.  Crandall,  9  Wend. 
(N.  Y.)  425. 

In  accordance  with  these  views,  it  was  held  by  this  court,  when 
this  case  was  before  it  after  a  former  trial,  at  which  the  domicile  of 
the  intestate  appeared  to  have  been  in  Alabama,  that  the  payment 
in  Tennessee  to  the  Alabama  administrator  was  good  as  against  the 
administrator  afterwards  appointed  in  Tennessee.  Wilkins  v.  Ellett, 
9  Wall.  740,  19  L.  Ed.  586. 

The  fact  that  the  domicile  of  the  intestate  has  now  been  found  by 
the  jury  to  be  in  Tennessee  does  not  appear  to  us  to  make  any  differ- 
ence. There  are  neither  creditors  nor  next  of  kin  in  Tennessee. 
The  Alabama  administrator  has  inventoried  and  accounted  for  the 
amount  of  this  debt  in  Alabama.  The  distribution  among  the  next  of 
kin,  whether  made  in  Alabama  or  in  Tennessee,  must  be  according 
to  the  law  of  the  domicile;  and  it  has  not  been  suggested  that  there  is 
any  difference  between  the  laws  of  the  two  states  in  that  regard. 

The  judgment  must,  therefore,  be  reversed,  and  the  case  remanded 
with  directions  to  set  aside  the  verdict  and  to  order  a  new  trial. ^ 

sAccord:     In  re  William's  Estate,  130  Iowa,  553,  ,107  N.  W.  608  (1906). 

But  a  payment  to  a  foreign  administrator  after  the  appointment  of  an  an- 
cillary administrator  within  a  local  jurisdiction  will  not  constitute  a  dis- 
charge. Stone  V.  Scripture,  4  Lans.  (N.  Y.)  186  (1870) ;  Walker  v.  Welker, 
55  111.  App.  118  (1893).  Unless,  perhaps,  the  payment  is  made  in  ignorance 
of  the  local  appointment  and  there  appear  to  be  no  local  creditors.  Maas  v. 
German  Sav.  Bank,  176  N.  Y.  377,  68  N.  B.  658,  98  Am.  St.  Rep.  689  (1903). 

The  domiciliary  administrator  is  bound  as  far  as  possible  to  collect  foreign 
assets.  In  re  Ortiz's  Estate,  86  Cal.  306,  24  Pac.  1034.  21  Am.  St.  Rep.  44 
(1890).  See,  also,  Klein  v.  French,  57  Miss.  662  (1880),  and  45  Am.  St.  Rep. 
664-674.  Where  letters  of  administration  are  granted  to  him  in  different  ju- 
risdictions, he  is  accountable  in  each  jurisdiction  for  the  property  which  he 
has  there  received  and  for  that  only.  Normand's  Adm'r  v.  Groguard,  17  N. 
J.  Eq.  425  (1805).  But  see  Cureton  v.  Mills,  13  S.  O.  409,  36  Am.  Rep.  700 
(1879). 


98  PARTICULAR  SUBJECTS.  (Part  2 

(^P^  PETERSEN  V.  CHEMICAL  BANK. 

(Court  of  Appeals  of  New  York,  1865.     32  N.  Y.  21,  88  Am.  Dec.  298.) 


Action  to  recover  $32,321.24,  the  amount  standing  to  the  credit  of 
Aaron  Cohen  on  the  books  of  the  defendant  bank,  in  New  York.  Co- 
hen died  at  his  residence  in  Connecticut  on  July  27,  1862,  and  David 
J.  Peck  was  appointed  administrator  with  the  will  annexed  by  the 
probate  court  of  the  district  of  New  Haven,  Conn.  Peck  presented 
an  authenticated  copy  of  his  appointment  to  the  defendant  and  demand- 
ed payment  of  the  above  amount,  but  payment  was  declined.  .vlie_^ 
thereupon  assigned  the  debt  owing  by  the  defendant  bank  to_the_glain;- 
tiff  in  J:his  actiQii,  PTaihti'ff  called  at  the  bank,  exhibiting  the  instru- 
ment under  the  hand  and  seal  of  the  administrator.  Peck,  and  demand- 
ed the  money.  He  exhibited  at  the  same  time  an  instrument  signed 
by  all  the  legatees  named  in  the  will,  with  the  exception  of  one  who 
resided  in  an  insurgent  state  and  who  was  entitled  to  one-sixth  of  the 
residue,  requesting  that  the  money  might  be  paid  over  to  Peck  as  ad- 
ministrator. Defendant  persisted  in  refusing  payment,  on  the  ground, 
apparently,  that  the  moneys  could  not  safely  be  paid  except  to  an  ad- 
ministrator appointed   under  the  laws  of  the   state  of   New  York.® 

Denio,  C.  J.^°  [After  holding  that  Cohen's  domicile  at  the  time 
of  his  death  was  at  New  Haven  the  learned  justice  continued:] 

A  foreign  executor  or  administrator  (and  one  appointed  under  the 
laws  of  a  sister  state  of  the  Union  is  foreign  in  the  sense  of  the  rule) 
cannot  sue  in  his  representative  character  in  the  courts  of  this  state. 
The  question  whether  a  party  deriving  title  to  a  chose  in  action  by 
transfer  from  such  an  executor  or  administrator,  can  prosecufe^'lh'e 
debtor  residing  here,  in  our  courts,  has  been  variously  decided  in  the 
cases  to  which  we  have  been  referred!  In  the  Supreme  Court  in  the 
First  District,  the  Merchants' Bank  of  New  York  was  sued  for  refus- 
ing to  transfer  to  the  plaintiff  one  hundred  shares  of  its  stock,  to  which 
the  latter  made  title  by  transfers  from  the  executors  of  one  Robert 
Middlebrook,  in  whose  name  the  stock  stood  on  the  books  of  the  bank. 
He  died  at  his  residence  in  Connecticut,  and  his  will  had  been  proved, 
and  letters  testamentary  had  been  issued  by  the  probate  court  of  the 
proper  district  in  that  state.  The  plaintiff  was  a  legatee  of  a  certain 
amount  of  the  testator's  stock,  and  the  shares  in  controversy  had  been 
assigned  to  him  in  satisfaction  of  the  legacy.  The  court  held  that  the 
executors  became  vested  with  the  title  to  the  stock,  and  that  the  plain- 
tiff, though  he  derived  his  title  under  them,  could  enforce  his  right 
against  the  bank  in  our  courts,  and  judgment  was  accordingly  given  in 
his  favor.  Middlebrook  v.  Merchants'  Bank,  27  How.  Pr.  474;  s.  c, 
at  Special  Term,  24  How.  Pr.  267. 

0  This  statement  of  facts  lias  been  substituted  for  that  of  the  original  re- 
port. 

10  The  concurring  opinion  of  Potter,  J.,  has  been  omitted. 


Ch.  5)  FOREIGN    ADMINISTRATIONS.  699 

A  different  rule  has  been  established  in  the  courts  of  New  Hamp- 
shire and  of  Maine.  Thompson  v.  Wilson,  2  N-.  H.  291;  Stearns  v. 
Burnham,  5  Greenl.  (Me.)  261,  17  Am.  Dec.  228.  In  each  of  these 
cases  the  defendant  was  sued  as  the  maker  of  a  promissory  note,  by 
parties  claiming  as  indorsees  under  indorsements  by  the  executors 
of  the  payees  who  were  respectively  residents  of  Massachusetts,  and 
whose  wills  were  proved  and  letters  thereon  issued  in  that  state.  The 
defendants  prevailed  in  each  case,  on  the  objection  that  the  respective 
plaintiffs  were  subject  to  the  same  disability  to  sue  which  would  have 
attached  to  the  executors  if  they  had  attempted  to  prosecute  in  another 
state  than  that  under  whose  laws  their  letters  testamentary  were 
granted.  In  the  first  case  the  judgment  was  placed  upon  the  English 
ecclesiastical  law,  by  which  probates  of  wills  and  grants  of  administra- 
tion are  void  when  not  made  by  the  ordinary  of  the  proper  diocese,  a 
doctrine  which  I  do  not  think  applicable  to  questions  arising  between 
different  states,  as  it  makes  no  allowance  for  the  principles  of  interna- 
tional comity.  In  the  case  in  Maine,  it  was  thought  that  allowing  a 
recovery  would  be  an  indirect  mode  of  giving  operation  in  Maine  to 
the  laws  of  Massachusetts,  and  also  that  the  effects  .of  the  deceased 
might  thereby  be  withdrawn  from  the  state,  to  the  prejudice  of  credi- 
tors residing  there. 

The  precise  case  now  before  us  came  before  the  Supreme  Court  of 
the  United  States  in  Harper  v.  Butler,  2  Pet.  239,  7  L.  Ed.  410. 
The  suit  was  brought  in  Mississippi,  on  a  chose  in  action,  originally 
existing  in  favor  of  a  citizen  of  Kentucky,  who  died  there,  and  whose 
executor  having  letters  testamentary  issued  in  that  state,  assigned  it 
to  the  plaintiff.  In  Mississippi,  choses  in  action  are  assignable  so  as 
to  permit  the  assignee  to  sue  in  his  own  name,  as  is  now  the  case  in 
this  state.  The  question  arose  on  demurrer  to  the  complaint,  and  the 
District  Court  sustained  the  demurrer.  The  judgment  was  reversed 
upon  a  short  opinion  by  Chief  Justice  ^Marshall,  which  merely  states 
the  point,  and  contains  no  general  reasoning.  No  counsel  appeared  on 
behalf  of  the  defendant. 

The  case  in  Maine  has  been  made  the  subject  of  comment  in  Story's 
Treatise  on  the  Conflict  of  Laws,  §§  258,  259,  and  is  decidedly  dis- 
approved by  the  learned  writer.  He  says,  that  upon  the  reasoning  of 
the  case  a  promissory  note  would  cease  to  be  negotiable  after  the  death 
of  the  payee,  which,  he  observes,  would  certainly  not  be  an  admissible 
proposition. 

It  seems  clear  to  me  that  there  are  no  precedents  touching  the  ques- 
tion which  are~biffdmg"  upon' this  court,  or  which  can  relieve  it  from 
the  duty  oracaminmg  the  question  upon  principle.  There  are  certain 
legal  doctrines,  now  very  well  established,  which  have  a  strong  bearing 
upon  the  point.  It  is  very  clear,  in  the  first  place,  that  neither  an  exe- 
cutor or  administrator,  appointed  in  a  foreign  political  jurisdiction, 
can  maintain  a  suit  in  his  own  name  in  our  courts.  Foreign  laws  have 
no  inherent  operation  in  this  state ;   but  it  is  not  on  this  account  solely 


700  PARTICULAR  SUBJECTS.  (Part  2 

or  principally  that  we  deny  foreign  representatives  of  this  class  a 
standing  in  our  courts.  The. comity  of  nations,  which  is  a  part  of  the 
common  law,  allows  a  certain  effect  to  titles  derived  under  and  powers 
created  by  the  laws  of  other  countries.  Foreign  corporations  may  be- 
come parties  to  contracts  in  this  state,  and  may  sue  or  be  sued  in  our 
courts  on  contracts  made  here  or  within  the  jurisdiction  which 
created  them.  The  only  limitation  of  that  right  is  the  inhibition  to 
do  anything  in  its  exercise  which  shall  be  hostile  to  our  own  laws  or 
pohcy.  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  10  L.  Ed.  274;  Bard 
V.  Poole,  2  Kern.  495,  505,  and  cases  cited.  And  yet  nothing  can  be 
more  clearly  the  emanation  of  sovereign  political  power  than  the  crea- 
tion of  a  corporation.  Again,  the  receivers  of  insolvent  foreign  cor- 
porations, and  assignees  of  bankrupt  and  insolvent  debtors,  under  the 
laws  of  other  states  and  countries,  are  allowed  to  sue  in  our  courts. 
"  It  is  true  their  titles  are  not  permitted  to  overreach  the  claims  of  dom- 
estic creditors  of  the  same  debtor,  pursuing  their  remedies  under  our 
laws;  but  in  the  absence  of  such  contestants  they  fully  represent  the 
rights  of  the  foreign  debtors.  Story's  Confl.  Laws,  §  112;  Hoyt  v. 
Thompson,  5  N.  Y.  320 ;  s.  c,  19  N.  Y.  207 ;  Willitts  v.  Waite,  25  N. 
Y.  584.  It  is  not  therefore  because  the  executor  or  administrator  has 
no  right  to  the  assets  of  the  deceased,  existing  in  another  country, 
that  he  is  refused  a  standing  in  the  courts  of  such  country,  for  his 
title  to  such  assets,  though  conferred  by  the  law  of  the  domicile  of  the 
deceased,  is  recognized  everywhere.  Reasons  of  form,  and  a  solici- 
tude to  protect  the  rights  of  creditors  and  others,  resident  in  the  juris- 
diction in  which  the  assets  are  found,  have  led  to  the  disability  of  for- 
eign executors  and  administrators,  which  disability,  however  incon- 
sistent with  principle,  is  very  firmly  established.  We  have  lately  de- 
cided that  if  the  debtors  of  the  deceased  will  voluntarily  pay  what  they 
owe  to  the  foreign  executor,  such  payment  will  discharge  the  debts, 
and  the  moneys  so  collected  will  be  subject  to  the  administration  of 
such  foreign  executor.    Parsons  v.  Lyman,  20  N.  Y.  103. 

But  the  principle  of  law  which  I  think  governs  this  case  is,  that  the 
succession  to  the  personal  estate  of  a  deceased  person  is  governed  by 
the  law  of  the  country  of  his  domicile  at  the  time  of  his  death.  This 
is  so  whether  the  succession  is  claimed  under  the  law  providing  for  in- 
testacy or  for  transmission  by  last  will  and  testament.  See  Parsons  v. 
Lyman,  supra,  and  authorities  cited  at  page  112.  It  is  not  so  held 
because  the  foreign  Legislature  or  the  local  institutions  have  any  extra- 
territorial force,  but  from  the  comity  of  nations.  Accordingly,  it  is 
a  necessary  supplement  to  the  doctrine  that,  if  the  lawmaking  power 
of  the  state  where  the  property  happens  to  be  situated,  or  the  debtor 
of  the  deceased  reside,  to  subserve  its  own  policy,  has  engrafted  quali- 
fications or  restrictions  upon  the  rights  of  those  who  would  succeed 
to  the  estate  by  the  law  of  the  domicile,  they  must  take  their  rights 
subject  to  such  restrictions.  One  of  the  most  natural,  as  well  as  the 
most  usual  of  these  qualifications  is  that  which  is  intended  to  secure 


Ch.  5)  FOREIGN    ADMINISTRATIONS.  701 

the  creditors  of  the  deceased  residing  in  the  county  where  the  assets 
exist.  It  is  in  part  to  subserve  this  poHcy  that  the  personal  repre- 
sentatives are  not  permitted  to  prosecute  the  debtor  or  parties  who 
withhold  his  effects  in  our  courts.  But  the  protection  to  the  creditor 
is  further  secured  by  the  remedy  which  is  provided  by  allowing  them  to 
take  out  administration  in  the  jurisdiction  where  the  assets  are.  If 
the  deceased  have  any  relatives  in  this  state  who  would  be  preferably 
entitled,  they  can  be  summoned,  and  if  they  elect  to  take  out  letters 
themselves,  they  will  be  compellable  to  give  bond,  and  the  creditors 
will  be  then  made  secure  in  their  rights,  or  if  the  relatives  refuse  to 
assume  that  responsibility,  then  the  creditors  may  themselves  be  ap- 
pointed, and  thus  qualified  to  take  possession  of  the  assets  here  upon 
the  same  terms.  2  Rev.  St.  (1st.  Ed.)  p.  73,  pt.  2,  c.  6,  tit.  2,  §§  23,  24. 
If  the  debtors  of  the  estate  elect  to  pay  to  the  former  representative, 
or  to  deliver  to  him  the  movable  assets,  before  the  granting  of  admini- 
stration in  this  state,  the  domestic  creditors  are"  put  to  the  inconven- 
ience of  asserting  their  rights  in  the  courts  of  the  country  of  their 
debtor's  domicile  against  his  representatives  appointed  under  the  laws 
of  that  country,  just  as  they  would  have  been  compelled  to  do  if  all 
his  effects  had  been  situated  there.  Another  general  principle  of  law 
necessary  to  be  adverted  to  is,  that  the  executor  of  a  testator,  as  soon 
at  least  as  he  has  clothed  himself  with  the  commission  of  the  probate 
court,  is  vested  with  the  title  to  all  the  movable  property  and  rights 
of  action  which  the  deceased  possessed  at  the  instant  of  his  death. 
The  title  of  the  executor,  it  is  true,  is  fiduciary  and  not  beneficial. 
That  title  is,  however,  perfect  against  every  person  except  the  credi- 
tors and  legatees  of  the  deceased.  The  devolution  of  ownership  is 
direct  to  the  representative,  and  the  beneficiaries  take  no  title  in  the 
specific  property  which  the  law  can  recognize.  An  administrator  with 
the  will  annexed,  has  the  same  rights  of  property  as  the  executor  nam- 
ed in  the  will  would  have  had  if  he  had  qualified.  2  Rev.  St.  (1st  Ed.) 
p.  72,  pt.  2,  c.  6,  tit.  2,  §  22. 

The  law  of  maintenance,  while  it  existed,  prohibited  the  transfer 
of  the"  legal  property  in  a  chose  in  action,  so  as  to  give  the  assignee 
a  right  of  action  in  his  own  name.  But  this  is  now  abrogated,  and 
sucli  a  demand  as  that  which  is  asserted  against  the  defendant  in  this 
suit  may  be  sold  and  conveyed  so  as  to  vest  in  the  purchaser  all  the 
legal  as  well  as  the  equitable  rights  of  the  original  creditor.  Voorhies' 
Code  (6th  Ed.)  §  111.  Though  such  demands  are  not  negotiable  in 
precisely  the  same  sense  as  commercial  paper,  since  the  assignee  is  sub- 
ject to  every  substantial  defense  which  might  have  been  made  against 
the  assignor,  yet  where,  as  in  this  case,  no  such  defense  exists,  the 
transfer  is  absolute  and  complete.  The  title  which  is  vested  in  the 
executor  carries  with  it  the  jus  disponendi  which  generally  inheres  in 
the  ownership  of  property.  "It  is  a  general  rule  of  law  and  equity," 
says  Judge  Williams,  in  his  Treatise  on  Executors,  "that  an  executor 
or  administrator  has  an  absolute  power  of  disposal  over  the  whole 


702  PARTICULAR  SUBJECTS.  (Part  3 

personal  effects  of  his  testator  or  intestate,  and  that  they  cannot  be 
followed  by  creditors,  much  less  by  legatees,  either  general  or  specific, 
into  the  hands  of  the  alienee."  Treatise,  p.  796.  See,  also.  Whale  v. 
Booth,  4  Term  R.  625,  in  note  to  Farr  v.  Newman,  4  Term  R.  632; 
Sutherland  v.  Brush,  7  Johns.  Ch.  17,  11  Am.  Dec.  383 ;  Rowlinson 
V.  Stone,  3  Wils.  1 ;  Harper  v.  Butler,  supra. 

It  follows  that  the,  plaintiff  presented  himself  to  the  superior  court 
as  the  owner  by  purchase  and  assignment  of  the  debt  against  the  de- 
fendant, from  a  person  holding  the  title  and  hence  having  authority 
to  sell.  He  claimed  to  recover,  not  as  the  representative  of  any  other 
party,  but  as  the  substituted  creditor  of  the  defendants'  bank.  He  had, 
it  is  true,  to  make  title  through  the  will  of  Cohen,  and  the  proceedings 
of  the  probate  court  of  Connecticut.  But  the  validity  of  that  title  de- 
pended upon  the  law  of  Connecticut,  that  being  the  place  of  the  domicile 
of  the  former  owner  of  the  demand.  The  validity  of  every  transfer, 
alienation  or  disposition  of  personal  property  depends  upon  the  law 
of  the  owner's  domicile.  Story  on  Confl.  of  Laws,  §  383.  In  the  ab- 
sence of  proof  to  the  contrary,  we  assume  the  law  of  Connecticut  re- 
specting the  alienation  of  choses  in  action  to  be  the  same  as  our  own. 
If  Cohen  had,  at  his  death,  been  a  resident  of  this  state,  and  his  ad- 
ministrator with  the  will  annexed  had  sold  and  assigned  to  the  plain- 
tiff his  demand  against  the  bank,  there  is  no  manner  of  doubt  but 
that  the  assignee,  upon  the  refusal  of  the  bank  to  pay  the  amount, 
could  have  maintained  this  action. 

Hence  there  is  not,  I  think,  any  reason  why  the  plaintiff  should  be 
precluded  from  maintaining  his  action,  on  account  of  his  making  title 
through  a  foreign  administration.  The  rule  is  not  that  our  courts  do 
not  recognize  titles  thus  acquired.  It  is  simply  that  a  foreign  execu- 
tor or  administrator  can  have  no  standing  in  our  courts.  The  plaintiff 
does  not  occupy  that  position.  He  sues  in  his  own  right  and  for  his 
own  interest,  and  represents  no  one.  In  my  opinion,  the  disability  to 
sue  does  not  attach  to  the  subject  of  the  action,  but  is  confined  to  the 
person  of  the  plaintiff.  If  he  is  an  unexceptionable  suitor,  and  there  is 
no  rule  of  form  or  of  policy  which  repels  him  from  our  courts,  he  is 
to  be  received,  and  he  may  make  out  his  title  to  the  subject  claimed, 
in  any  manner  allowed  by  law ;  and  it  has  been  shown  that  title  ac- 
quired through  a  foreign  administration  is  universally  respected  by  the 
comity  of  nations. 

It  is  pretty  obvious  from  the  evidence  of  the  circumstances  of  the 
transfer  by  Peck  to  the  plaintiff,  that  its  object  was  to  avoid  the  objec- 
tion which  might  be  taken  if  Peck  had  sued  in  his  own  name  as  ad- 
ministrator, without  taking  out  letters  here.  There  was  no  other  con- 
ceivable motive  for  the  plaintiff  to  purchase  this  moneyed  demand  pay- 
able immediately,  for  its  precise  amount  paid  down.  If  his  check  on 
the  bank,  drawn  shortly  after  the  transfer,  had  been  answered,  he 
would  have  received  the  precise  amount  he  had  parted  with,  and  the 
transaction  at  the  best  would  have  been  paying  with  one  hand  and  re- 


Ch.  5)  FOREIGN   ADMINISTRATIONS.  703 

ceiving  the  same  amount  back  with  the  other.  If  he  failed  to  reahze 
the  amount,  he  was  to  be  indemnified  by  Peck.  This  circumstance, 
and  the  manner  in  which  the  assumed  consideration  was  disposed  of, 
would  doubtless  have  led  the  jury  to  find,  that  the  form  adopted  was 
resorted  to  in  order  to  enable  the  administrator  to  avail  himself  of  the 
balance  in  the  defendant's  bank,  without  taking  out  administration 
here.  Still,  as  between  the  plaintiff  and  Peck,  the  interest  in  the  de- 
mand passed.  Peck  would  have  been  estopped  by  his  conveyance  un- 
der seal,  containing  an  acknowledgment  of  the  payment  of  the  con- 
sideration, from  setting  up  that  nothing  passed  by  the  conveyance. 
I  am  of  opinion  that  the  defendant  cannot  make  a  question  as  to  the 
consideration.  If  all  the  parties  had  been  residents  of  this  state,  a 
transfer  of  the  demand,  good  as  between  the  parties  to  that  transfer, 
would  have  obliged  the  defendant  to  respond  to  .the  action  of  the 
transferee.  Then  if  we  hold,  as  I  think  we  should,  that  the  objection^  C^Jy^ 
to  the  suit  of  the  administrator  was  in  the  nature  of  a  personal  disa-  {  1 
bility  to  sue,  and  not  an  infinnit}^  inhering  in  the  subject  of  the  suit,  ? 
the  fact  that  the  transfer  was  made  for  the  purpose  of  getting  rid  of  \ 
the  objection,  should  not  prejudice  the  plaintiff.  The  cases  which  have  '-'  ' 
been  referred  to  upon  this  point  have  considerable  analogy.  The 
Constitution  and  laws  of  the  United  States  confer  upon  the  courts  of 
the  Union  jurisdiction  in  suits  between  citizens  of  different  states, 
with  an  exception,  contained  in  an  act  of  Congress,  of  one  suing  as  the 
assignee  of  a  chose  in  action,  of  a  party  whose  residence  was  such  as 
not  to  permit  him  to  sue.  In  an  action  by  an  assignee  concerning  the 
title  to  land,  which  was  not  wdthin  the  exception,  it  was  held  not  to  be 
an  objection  which  the  defendant  could  take,  that  the  assignment  was 
made  for  the  purpose  of  removing  the  difficulty  as  to  jurisdiction. 
Briggs  v.  French,  2  Sumn.  251,  Fed.  Cas.  No.  1,871.  In  a  late  case 
in  this  court  against  a  foreign  corporation,  which  could  not  be  prose- 
cuted here  except  by  a  resident  of  this  state,  unless  the  cause  of  ac- 
tion arose  here  or  the  subject  of  the  action  was  situated  here,  it  was 
held  that  the  objection — that  the  assignment  of  the  demand  by  one 
not  qualified  by  his  residence  to  sue,  to  the  plaintiff  who  was  thus 
qualified,  was  made  for  the  purpose  of  avoiding  the  difficulty — could 
not  be  sustained.     McBride  v.  Farmers'  Bank,  26  N.  Y.  450. 

I  have  not  thus  far  referred  to  the  circumstance  that  Cohen  was 
shown  not  to  have  owed  any  debts  in  this  state.  That  fact  was  proved 
as  strongly  as  in  the  nature  of  the  case  such  a  position  could  be  estab- 
lished. The  administrator,  whose  business  it  was  to  ascertain  the  ex- 
istence of  debts,  and  the  confidential  servant  of  Cohen  who  was  very 
familiar  with  his  transactions,  affirmed  that  there  were  none ;  and  the 
defendant  gave  no  evidence  on  the  subject.  The  motive  of  policy  for 
forbidding  the  withdrawal  of  assets  to  the  prejudice  of  domestic  cred- 
itors, did  not  therefore  exist  in  this  case.  Still,  if  the  rule  is  that  nei- 
ther the  foreign  administrator  or  his  assignee  can  maintain  an  action  in 
our  courts  to  collect  a  debt  against  a  debtor  residing  here,  on  account 


^ 


704  PARTICULAR  SUBJECTS.  (Part  2 

of  its  tendency  to  prejudice  domestic  creditors,  the  exceptional  fea- 
tures of  the  present  case  would  not  change  the  principle.  It  would 
often  be  more  difficult  than  in  this  case  to  disprove  the  existence  of 
such  debts.  But  I  am  of  opinion  that  the  objection  should  be  regarded 
as  formal,  and  that  it  does  not  exist  where  the  plaintiff  is  not  a  foreign 
executor  or  administrator  but  sues  in  his  own  right,  though  his  title 
may  be  derived  from  such  a  representative. 

I  am  in  favor  of  affirming  the  judgment  of  the  Supreme  Court.^* 


/ 


BROWN  V.  SMITH. 

(Supreme  Judicial  Court  of  Maine,  1906.     101  Me.  545,  64  Atl.  915,  115  Am. 

St.  Rep.  339.) 

The  plaintiff  held  by  assignment  a  mortgage  of  the  demanded 
premises,  given  May  28,  1887,  by  Albert  D.  Bumps,  of  Thorndike, 
Me,,  to  George  Tyler,  of  Boston,  Mass.,  to  secure  a  certain  judg- 
ment recovered  by  said  Tyler  against  said  Bumps  in  the  Supreme 
Judicial  Court,  Waldo  county.  Afterwards  the  said  Tyler  died,  and 
Isabella  J.  Tyler,  of  Waltham,  Mass.,  was  duly  appointed  adminis- 
tratrix of  the  estate  of  said  Tyler  by  the  probate  court  of  Middle- 
sex county,  Mass.  The  administratrix  then  assigned  said  mortgage 
to  the  plaintiff. 

There  was  no  ancillary  administration  on  the  estate  of  the  said 
deceased,  George  Tyler,  in  the  state  of  Maine.  The  defendant  con- 
tended, among  other  things,  that  the  administratrix  of  the  estate  of 
said  deceased,  George  Tyler,  had  no  power  to  make  a  valid  assign- 
ment of  the  aforesaid  mortgage  given  to  her  intestate,  as  she. had 
been  appointed  administratrix  in  another  state  wdiile  the  mortgage 
was  of  land  in  the  state  of  Maine. 

Powers,  J.  Writ  of  entry  to  recover  certain  lands  in  Thorndike. 
The  case  comes  here  on  report. 

To  make  out  title  plaintiff"  introduced:  (1)  A  duly  recorded 
mortgage  of  the  demanded  premises  from  Albert  D.  Bumps,  of 
Thorndike,  Me.,  to  George  Tyler,  of  Boston,  Mass.,  dated  May  28, 
1887,  given  to  secure  a  certain  execution  and  judgment  recovered 
by  said  Tyler  against  said  Bumps  in  this  court  in  said  Waldo  county ; 
(2)  copies  of  records  of  the  probate  court  of  Middlesex  county,  Mass., 
showing  that  December  10,  1889,  Isabella  J.  Tyler,  of  Waltham,  in 

11  Accord:  Luce  v.  Mancliester  &  L.  R.  R.,  63  N.  H.  588,  3  Atl.  618  (1885). 
Contra:  Stearns  v.  Burnham,  5  Greenl.  (Me.)  261,  17  Am.  Dec.  228  (1828); 
McCarty  v.  Hall,  13  Mo.  480  (1850).  Such  an  assignment  will  not  be  recognized 
after  the  appointment  of  an  ancillary  administrator.  Du  Val  v.  Marshall,  30 
Ark.  230  (187.5) ;  Murphy  v.  Ci'ouse,  135  Cal.  14,  66  Pac.  971,  87  Am.  St.  Rep.  90 
(1901).  It  has  been  held  that  it  will  he  recognized  only  as  against  a  debtor  of 
the  state  in  which  the  deceased  had  his  domicile.  Elmer  v.  Hall,  148  Pa.  345, 
23  Alt  971  (1892). 


Ch.    5)  FOREIGN   ADMINISTRATIONS.  705 

the  county  of  Middlesex,  was  duly  appointed  administratrix  of  the 
estate  of  George  Tyler,  late  of  said  Waltham,  deceased;  (3)  as- 
signment from  said  administratrix  to  the  plaintiff  of  said  mortgage, 
duly  recorded,  and  dated  November  21,  1904.  This  makes  a  prima 
facie  case,  if  an  administratrix  appointed  in  another  state  has  power 
to  assign  a  mortgage  given  to  her  intestate  upon  real  estate  in  this 
state. 

It  is  a  well-settled  principle  of  the  common  law  that  the  power 
and  authority  of  an  administrator  or  executor  over  the  estate  of  the 
deceased  is  confined  to  the  sovereignty  by  virtue  of  whose  laws  he 
is  appointed.  In  recognition  of  this  principle  provision  is  made  by 
our  statutes  for  the  granting  of  ancillary  administration  on  the  es- 
tate of  nonresidents  who  died  leaving  estate  to  be  administered  in 
this  state,  or  whose  estate  is  afterwards  found  therein.  Rev.  St. 
1903,  c.  65,  §  7;  chapter  66,  §§  14,  15,  and  16. 

One  reason  at  least  upon  which  this  rule  is  founded,  is  to  prevent 
the  effects  or  credits  of  the  deceased  found  in  any  state,  which  may 
be  needed  to  satisfy  debts  due  to  the  citizens  of  that  state,  from  be- 
ing withdrawn  from  its  jurisdiction.  That  no  such  necessity  in  fact 
exists  can  never  be  known  with  certainty  in  any  given  case,  unless 
administration  is  granted,  and  an  opportunity  thereby  afforded  to 
creditors  to  present  their  claims.  Mansfield  v.  McFarland,  202  Pa. 
173,  51  Atl.  763.  It  is  said  in  Stearns  v.  Burnham,  5  Me.  261,  17 
Am.  Dec.  228,  that  the  principles  of  justice  and  policy,  upon  which 
similar  statutes  to  those  above  cited  were  founded,  "would  seem  to 
lead  our  courts  of  law  to  that  course  of  proceedings  which  would 
harmonize  with  those  principles  and  have  a  manifest  tendency  to 
produce  the  same  beneficial  results."  In  that  case  it  was  accord- 
ingly held  that  an  executor  appointed  under  the  laws  of  another 
state  cannot  indorse  a  promissory  note  payable  to  his  testator  by 
a  citizen  of  this  state  so  as  to  give  the  indorsee  a  right  of  action  here 
in  his  own  name. 

The  debt  due  from  Bumps,  who,  at  the  time  of  the  recovery  of 
the  judgment  and  ever  since,  has  been  a  resident  of  this  state,  con- 
stituted no  part  of  the  goods,  effects,  rights,  and  credits  of  the  in- 
testate in  Massachusetts,  which  alone  the  administratrix  was  au- 
thorized and  empowered  to  administer.  The  debt  follows  the  cred- 
itor while  living.  After  his  death  it  follows  the  debtor.  Saunders 
V.  Weston,  74  Me.  85.  The  situs  of  the  debt  being  in  Maine,  the 
administratrix,  deriving  her  authority  solely  from  the  laws  of  Mass- 
achusetts, had  no  control  over  it. 

There  is  even  stronger  reason  for  holding  that  she  had  no  control 
over  the  mortgage.  A  mortgage  and  its  assignrpent  are  conveyan- 
ces of  land  in  fee,  which  must  be  recorded.  It  is  desirable  that  ti- 
tle to  real  estate  should,  so  far  as  possible,  appear  of  record.  The 
party  having  a  right  to  redeem  ought  to  be  able,  by  an  examination 
of  the  records  in  the  registry  of  deeds  and  the  probate  courts  of  this 
LoB.CoNT.L. — 45 


"06  PARTICULAR  SUBJECTS.  (Part  2 

state,  to  ascertain  who  is  entitled  to  receive  payment  and  give  a  dis- 
charge of  the  mortgage,  without  being  compelled,  at  his  peril,  to 
incur  the  expense  of  searching  the  records  of  other  states  and  coun- 
tries. Without  doing  this  the  defendant  in  the  present  case  could 
not  know,  until  the  evidence  was  produced  at  the  trial,  that  the 
plaintiff's  assignor  had  ever  been  appointed  administratrix  of  the 
deceased  in  the  place  of  his  domicile.  The  courts  of  Massachusetts, 
in  a  case  which  has  been  frequently  cited  and  followed  in  that  state, 
have  decided  the  precise  point  here  presented  against  the  plaintiff's 
contention.  Cutter  v.  Davenport,  1  Pick.  81,  11  Am.  Dec.  149.  The 
question  is  a  new  one  in  this  state;  but  the  trend  of  our  decisions 
has  been  to  restrict  the  power  of  a  foreign  administrator  to  the  ju- 
risdiction of  his  appointment.  Stevens  v.  Gaylord,  11  Mass.  256 ; 
Stearns  v.  Burnham,  supra ;  Smith  v.  Guild,  34  Me.  443 ;  Oilman 
V.  Oilman,  54  Me.  453 ;  Smith  v.  Howard,  86  Me.  203,  29  Atl.  1008, 
41  Am.  St.  Rep.  537;   Oreen  v.  Alden,  92  Me.  177,  42  Atl.  358. 

It  may  fairly  be  regarded  as  the  settled  policy  of  this  state  that, 
when  assets  of  a  foreign  decedent  are  found  here,  ancillary  admin- 
istration must  be  obtained  here  for  the  protection  of  resident  cred- 
itors, before  our  courts  will  enforce  the  recovery  of  debts  due  the 
foreign  decedent.  Otherwise,  the  assets  could  be  converted  into 
money,  taken  outside  t.he  state,  distributed  under  the  jurisdiction 
of  foreign  courts,  and  our  citizens  compelled  to  go  into  other  juris- 
dictions to  collect  their  just  dues.  Such  is  the  general  rule.  Note 
to  Shinn's  Estate,  45  Am.  St.  Rep.  667 ;  Maas  v.  Bank,  176  N.  Y. 
377,  68  N.  E.  658,  98  Am.  St.  Rep.  689. 

Inasmuch,  therefore,  as  ample  provision  is  made  by  our  statutes 
for  the  granting  of  ancillary  administration  in  this  state,  a  course 
which  seems  to  be  in  accord  with  our  legislative  policy  and  judicial 
decisions,  and  may  in  any  case  be  necessary  for  the  protection  of 
our  citizens  whoare  creditors  of  the  estate,  and  in  view,  also,  of  the 
fact  that  it  is  desirable,  so  far  as  possible,  that  title  to  real  estate 
should  somewhere  appear  on  record  in  this  state,  we  hold,  in  accord- 
ance with  Cutter  v.  Davenport,  above  cited,  that  an  administrator 
cannot,  by  virtue  of  letters  granted  in  another  state,  assign  a  mort- 
gage of  land  situated  in  this  state,  so  as  to  enable  the  assignee  to 
enforce  payment  thereof.  Dial  v.  Oary,  14  S.  C.  573,  37  Am.  Rep. 
737;  18  Cyc.  1231;  Reynolds  v.  McMullen,  55  Mich.  568,  22  N.  W. 
41,  54  Am.  Rep.  386.  The  right  of  a  foreign  administrator  to  re- 
ceive a  voluntary  payment,  and  give  a  discharge  of  a  debt  so  paid, 
is  not  involved  in  this  case. 

Judgment  for  the  defendant.^* 

12 Accord:  Dial  v.  Gary,  14  S.  C.  573,  37  Am.  Rep.  737  (1880);  Hej^^ard 
V.  Williams,  57  S.  O.  2:35.  35  S.  E.  508  (1900V  See.  also.  Reynolrls  v.  McMul- 
len, 55  Mich.  568,  22  N.  W.  41.  54  Am.  Rep.  386  (1S85J.  Contra:  Gove  v.  Gove, 
64  N.  H.  503,  15  Atl.  121  (1888). 


Ch.    5)  FOREIGN   ADMINISTRATIONS.  707 

ANONYMOUS.^' 

(In  Chancery,  1724,     9  Mod.  66.) 

The  testator,  who  lived  in  Holland,  and  who  was  seised  of  a  real 
estate  there,  and  of  a  considerable  personal  estate  in  England,  de- 
vised all  his  real  estate  to  the  plaintiff,  and  all  his  personal  estate 
to  the  defendant,  whom  he  made  executor,  and  died.  But  at  the 
time  of  his  death  he  owed  some  debts  by  specialties,  and  some  by 
simple  contract  in  Holland,  and  had  no  assets  there  to  satisfy  those 
debts,  other  than  by  his  real  estate,  which,  by  the  custom  and  laws 
of  Holland,  is  made  liable  to  the  payment  of  debts  upon  simple  con- 
tract as  well  as  upon  specialties,  if  there  are  not  personal  assets  to 
answer  the  same,  especially  debts  upon  simple  contract  for  servants 
wages  or  for  work  done. 

Now  the  creditors  in  Holland  sued  the  plaintiff  there,  to  whom 
the  real  estate  was  devised,  and  had  a  sentence  against  it,  by  virtue 
whereof  it  was  sold  for  the  payment  of  their  respective  debts. 

Thereupon  the  plaintiff  exhibited  this  bill  against  the  defendant, 
who  was  executor,  and  to  whom  the  personal  estate  was  devised  as 
aforesaid,  that  he  (the  plaintiff)  might  be  reimbursed  by  the  defend- 
ant for  the  loss  he  had  sustained  in  not  bringing  the  personal  estate 
to  Holland  to  discharge  the  debts  there  in  aid  of  the  real  estate. 

Per  Curiam.  *  *  *  Now  by  the  laws  of  Holland,  all  debts 
shall  affect  the  real  estate  there ;  but  it  is  there,  as  it  is  here,  that 
the  personal  estate  shall  come  in  aid  of  the  real  estate,  and  be  charged 
in  the  first  place ;  therefore  the  personal  estate  in  this  case  should 
answer  the  loss  the  plaintiff  sustained  by  the  sale  of  the  real  estate, 
though  that  happened  in  a  dift'erent  dominion. 

Therefore  it  was  decreed,  that  the  plaintiff'  should  be  reim- 
bursed.^* 


LAWRENCE  v.  KITTERIDGE. 

(Supreme  Court  of  Errors  of  Connecticut,  1S52.     21  Conn.  577,  56  Am.  Dec. 

385.) 

Church,  C.  J.^"^  The  first  decree  of  the  court  of  probate  appealed 
from,  was  predicated  upon  facts  essentially  as  follows,  viz.,  Cephas 
Pettibone,  the  intestate,  at  the  time  of  his  death,  was  an  inhabitant 
of,  and  had  his  domicile  in,  the  state  of  Vermont,  and  was  possessed 
of  an  estate  there;    and  there  was  due  to  him  here,  from  a  citizen 

13 A  part  of  the  facts  and  opinion,  rehiting  to  another  matter,  has  been 
omitted. 

14  See  Rice  v.  Harbeson,  08  N.  T.  493  (1875) ;  Minor,  Conflict  of  Laws,  § 
112. 

15  The  statement  of  facts  and  a  small  portion  of  the  opinion  have  been  omit- 
ted. 


708  PARTICULAR  SUBJECTS.  (Part   2 

of  this  state,  a  debt  of  about  one  thousand  dollars.  Original  admin- 
istration upon  his  estate  was  granted  in  the  state  of  Vermont,  and 
was  in  progress,  when  an  ancillary  administration  was  granted  in 
this  state.  When  the  decree  appealed  from  was  made,  there  were  no 
unsatisfied  debts  due  from  the  estate,  here  or  in  Vermont,  and  noth- 
ing but  a  distribution  of  the  estate  remained  to  be  done. 

The  intestate  died,  leaving  brothers  and  sisters  of  the  whole  and 
half  blood;  all,  excepting  the  late  Augustus  Pettibone,  Esq.,  of 
Norfolk,  who  was  a  brother  of  the  whole  blood,  residing  in  Ver- 
mont, or  elsewhere,  out  of  this  state ;  and  he  had  no  other  heirs  at 
law.  By  the  laws  of  Vermont,  the  brothers  and  sisters  of  an  intes- 
tate of  the  whole  and  half  blood  are  entitled  equally  to  the  estate, 
under  the  statute  of  distribution. 

Upon  the  foregoing  state  of  facts,  the  court  of  probate  for  the  dis- 
trict of  Norfolk  was  of  opinion,  that  the  personal  estate  of  Cephas 
Pettibone — the  chose  in  action  of  one  thousand  dollars — should  be 
distributed  according  to  the  laws  of  the  state  of  Vermont ;  and  that 
this  could  better  be  done,  and  without  injury  to  any  citizen  of  this 
state,  by  transmitting  the  money  to  the  administrator  there,  and  to 
the  jurisdiction  of  the  court  of  principal  administration,  than  to  or- 
der a  distribution  of  it  here.  And  therefore  the  decree  appealed  from 
was  made. 

The  appellant,  who  is  the  representative  of  Augustus  Pettibone, 
the  brother  of  the  whole  blood  residing  in  the  district  of  Norfolk, 
objects  to  this  decree,  and  appeals  from  it.  He  claims,  that  the  as- 
sets or  money  in  the  hands  of  the  administrator  here,  should  have 
been  distributed  here,  and  according  to  the  laws  of  this  state,  which 
prefer  a  brother  or  sister  of  the  whole  blood  to  one  of  the  half  blood. 

1.  We  had  supposed,  that  the  law  of  the  country  of  the  domicile 
of  an  intestate  governed  and  regulated  the  distribution  of  his  per- 
sonal estate;  and  that  this  was  a  principle  of  international  law,  long 
ago  recognized  by  jurists  in  all  enlightened  governments,  and  es- 
pecially recognized  by  this  court,  in  the  recent  case  of  Holcomb  v. 
Phelps,  16  Conn.  127,  133,  in  which  we  say,  that,  "It  certainly  is 
now  a  settled  principle  of  international  law,  that  personal  property 
shall  be  subject  to  that  law  which  governs  the  person  of  the  owner, 
and  that  the  distribution  of  and  succession  to  personal  property, 
wherever  situated,  is  to  be  governed  by  the  laws  of  that  country 
where  the  owner  or  intestate  had  his  domicile  at  the  time  of  his 
death."  Sto.  Conf.  Laws,  403,  in  notis,  §§  480,  465 ;  2  Kent's  Com. 
Lect.  37;  2  Kaine's  Prin.  Eq.  312,  826;  Potter  v.  Brown,  5  East, 
124;  Balfour  v.  Scott,  6  Bro.  Pari.  Cas.  (Toml.  Ed.)  550;  Bempde 
V.  Johnstone,  3  Ves.  198;  Pepon  v.  Pepon,  Amb.  25,  415;  Guier  v. 
O'Daniel,  1  Bin.  (Pa.)  349,  in  notis;  Harvey  v.  Richards,  1  Mason, 
381,  Fed.  Cas.  No.  6,184. 

It  is  not  necessary  that  we  should  now  examine  the  reasons, 
whether  of  public  policy  or  legal  propriety,  which  have  led  the  tri- 


Ch,    5)  FOREIGN  ADMINISTRATIONS.  709 

bunals  of  civilized  nations  to  relax  from  antiquated  notions  on  this 
subject ;  some  of  these  are  well  considered,  by  Judge  Story,  in  the 
case  of  Harvey  v.  Richards,  1  Mason,  381,  Fed.  Cas.  No.  6,184,  and 
by  Chancellor  Kent,  in  his  Commentaries,  vol.  2,  lect.  37. 

It  is  true,  that  it  is  in  the  power  of  every  sovereignty,  and  within 
the  constitutional  powers  of  the  states  of  this  Union,  to  repudiate 
this  salutary  doctrine,  in  its  application  to  themselves,  or  to  mod- 
ify it,  for  what  they  may  suppose  to  be  the  protection  of  their  own 
citizens ;  but  without  some  peculiar  necessity,  it  cannot  be  suppos- 
ed, that  any  well  regulated  government  will  do  it.  It  was  claimed 
in  argument,  in  this  case,  that  this  had  been  done  in  this  state,  and  by 
the  provision  of  the  forty-ninth  section  of  our  statute  for  the  settlement 
of  estates  (Rev.  St.  1849,  p.  357),  by  declaring,  that  when  there  are  no 
children,  etc.,  of  an  intestate,  his  "real  and  personal  estate  shall  be  set 
off  equally  to  the  brothers  and  sisters  of  the  whole  blood."  But  it 
was  not  the  purpose  of  this  provision  to  disregard  the  universal  and 
salutary  doctrine  of  the  law  to  which  we  have  referred,  but  only 
to  regulate  the  descent  and  distribution  of  the  estates  of  our  own 
citizens.  This  provision  of  our  statute  is  not  peculiar  to  ourselves; 
a  similar  one,  we  presume,  may  be  found  in  the  codes  of  other 
states ;  at  least,  imperative  enactments  exist  in  every  state,  direct- 
ing the  distribution  of  estates;  but  none  of  them  are  intended  to 
repeal  the  law  of  the  domicile,  in  its  effect  upon  the  personal  estate 
of  the  owner.  The  controversy,  in  the  case  of  Holcomb  v.  Phelps, 
arose  under  the  same  section  of  our  law  as  does  the  one  now  under 
consideration,  and  the  result  of  that  case  must  settle  this  question, 
if  it  be  one. 

There  are  cases  in  which  the  law  of  the  domicile  has  been  modified 
or  restrained,  in  its  full  operation,  for  what  courts  have  supposed 
to  be  the  proper  protection  of  the  rights  of  the  citizens  of  their  own 
states;  but  these  are  generally  confined  to  cases  in  which  creditors 
are,  in  some  way  interested  under  insolvent  proceedings,  assign- 
ments, or  bankrupt  laws,  and  never,  we  believe,  are  extended  to 
mere  cases  of  distribution,  as  here  claimed.    Sto.  Conf.  L.  277,  §  337. 

The  views  of  the  court  of  probate  in  regard  to  the  operating  law 
of  distribution,  in  this  case,  were  correct;  and  the  remaining  question, 
in  this  part  of  the  case,  is,  whether  the  decree  which  followed,  direct- 
ing the  money  in  the  hands  of  the  administrator  here,  to  be  trans- 
mitted to  the  proper  jurisdiction  in  Vermont,  for  distribution,  should 
be  reversed ;  or  whether  the  court  here,  should,  by  its  own  decree, 
have  made  distribution  according  to  the  laws  of  Vermont? 

There  was  but  one  estate  to  be  settled;  and  this  was,  in  legal 
view,  attached  to  the  person  of  the  owner,  at  the  time  of  his  death, 
so  far  as  it  was  personal.  There  were  two  administrations ;  one 
original  and  principal  in  Vermont;  the  other  ancillary  and  subordi- 
nate, in  this  state.  Perkins  v.  Stone,  18  Conn.  270;  Sto.  Conf.  L. 
423. 


710  PARTICULAR  SUBJECTS.  (Part  2 

The  creditors  of  this  estate,  and  all  persons  having  claims  upon 
it,  in  this  state  and  in  Vermont,  were  satisfied,  and  nothing  remain- 
ed to  be  done,  but  in  the  distribution  of  it  among  those,  who,  by  the 
laws  of  the  state  of  Vermont,  were  entitled  to  it.  Why  were  two 
distributions  of  this  one  estate  necessary?  Without  special  reasons  re- 
quiring a  different  course,  there  would  seem  to  be  a  propriety,  that 
the  consummating  act  in  the  settlement,  should  have  been  done,  by 
the  tribunal  exercising  the  principal  jurisdiction,  and  that  the  money 
accidently  and  temporarily  in  this  state,  should  be  transmitted  thith- 
er, for  that  purpose.  Otherwise,  there  might  have  been  conflict- 
ing decrees,  and  the  courts  of  the  different  jurisdictions,  upon  vary- 
ing proofs,  might  have  found  different  persons  entitled  to  take  as  dis- 
tributees. The  law  of  Vermont  was  the  governing  law,  and  known 
to  the  courts  of  that  state,  as  a  matter  of  certainty ;  but  here,  to  be 
ascertained  only  by  proofs,  as  a  matter  of  fact. 

There  are  cases  in  which  the  courts  of  the  ancillary  administra- 
tion have  retained  the  assets,  and  distributed  them  according  to  the 
law  of  the  domicile;  and  others,  in  which  they  have  been  transmitted 
to  the  principal  and  original  jurisdiction  for  final  action.  Harvey  v. 
Richards,  1  Mason,  391,  Fed.  Cas.  No.  6,184;  Richards  v.  Dutch,  8 
Mass.  506;   Dawes  v.  Boylston,  9  Mass.  355,  6  Am.  Dec.  72. 

We  do  not  think  it  to  be  a  legal  consequence,  because  distribution 
should  be  made  according  to  the  law  of  the  domicile,  that  the  assets 
should  be  transmitted  for  distribution ;  the  courts  of  the  ancillary 
jurisdiction  may  distribute  them.  Stevens  v.  Gaylord,  11  Mass.  256 ; 
Dawes  v.  Head  et  al.,  3  Pick.  128;  Bruce  v.  Bruce,  2  Bos.  &  Pull. 
229;  Balfour  v.  Scott,  6  Bro.  Pari.  Cas.  550;  Hog  v.  Lashley,  Id. 
577;  Drummond  v.  Drummond,  Id.  601;  Somerville  v.  Somerville, 
16  Ves.  791. 

But  it  seems  now  to  be  settled,  that  the  power  of  the  court  grant- 
ing the  ancillary  administration  is  a  discretionary  one,  and  should 
depend  for  its  exercise  upon  the  circumstances  and  equity  of  each 
case.  This  is  a  salutary  principle,  and  can  work  no  harm ;  but  in 
its  application,  the  citizens  of  the  state  of  the  ancillary  administra- 
tion and  their  rights,  are  not  alone  to  be  regarded,  but  also  the  rights 
of  all  interested.  Harvey  v.  Richards,  1  Mason,  381,  Fed.  Cas.  No. 
6,184;  Dawes  v.  Head,  3  Pick.  128;  Topham  v.  Chapman,  1  Rep. 
Const.  Court,  S.  C.  292 ;  2  Kent's  Com".  Lect.  37 ;  Sto.  Conf .  L.  424. 

We  see  no  good  reason  to  be  dissatisfied  with  the  application  of 
this  principle  and  the  exercise  of  this  discretion,  by  the  court  of  pro- 
bate, in  the  decree  appealed  from.  The  original  administration  was 
granted,  by  a  court  in  a  sister  state  near  by,  and  within  one  or  two 
days'  reach  of  the  appellant,  who  represents  the  only  person  inter- 
ested in  the  estate  here.  All  the  other  interested  parties — and  there 
were  several  of  them — resided  in  the  state  of  Vermont,  or  else- 
where, where  they  could,  with  equal  convenience,  protect  their  in- 
terests, and  receive  their  portions  of  the  distributed  estate,  as  if  the 


Ch.    5)  FOREIGN  ADMINISTRATIONS.  Til 

distribution  had  been  made  by  the  court  of  probate  for  the  district 
of  Norfolk,  A  greater  inconvenience  and  expense  has  been  avoid- 
ed, by  the  transmission  of  the  money  to  Vermont  for  final  distribu- 
tion, than  if  it  had  been  retained  here.  And  still  we  do  not  say,  that 
we  would,  even  under  the  circumstances  of  this  case,  have  re- 
versed an  order  of  distribution,  if  made  by  the  court  of  probate 
here.     *     *     * 

The  superior  court  is  advised,  that  the  orders  and  decrees  of  the 
court  of  probate  should  be  affirmed.^* 


RAAISEY  V.  RA^ISEY. 
(Supreme  Court  of  Illiuois,  1902.     196  111.  179,  63  N.  E.  618.;      -  ^-^  -^    U    ^ 

Rufus  N.  Ramsey  died  a  resident  of  Clinton  count}^  111.,  leaving  >r<^7^ 

property  in  Illinois  and  Missouri,    The  assets  of  the  estate  amount-    S^^^r^ ^     t^^ 
ed  to  $131,810.42,  while  the  claims  presented  and  allowed  against     jJcU^  Ji 

the   estate   aggregated   $183,85-4.70.      Among   those   claims   was   one     -y-^^te^  |f^ 
in  favor  of  Julia  D.  Ramsey  and  another  in  favor  of  G.  Van  Hoore-zt/^"^      _.-*^-'''^ 
beke,  the  appellants  in  this  case.     The  claims  of  appellants  were    ^^^^.--^^ 
probated  and  allowed  in  Missouri  and  a  pro  rata  payment  of  12.44 
per  cent,  upon  their  respective  claims  was  received  by  them. 

Thereafter  the  administrator  in  Illinois  was  directed  by  the  cir- 
cuit court  of  Clinton  county  to  pay  all  claimants  except  appellants 
12.44  per  cent,  on  their  claims  and  to  then  distribute  the  balance  in 
his  hands  ratably  among  all  claimants  of  the  seventh  class.  The  judg- 
ment of  the  circuit  court  was  affirmed  by  the  Appellate  Court,  and  ^, 
from  that  judgment  of  affirmance  Jwlia  D.  Ramsey  and  G.  Van  Hoore- 
beke  prosecuted  this  appeal.  The  Revised  Statutes  of  Alissouri  of 
1889  provided  as  follows : 

"Sec.  263.  If  a  person  dies  insolvent,  his  estate  found  in  this  state 
shall,  as  far  as  practicable,  be  so  disposed  of  that  all  his  creditors,  here 
and  elsewhere,  may  receive  an  equal  share  in  proportion  to  their  re- 
spective debts. 

"Sec.  264.  To  this  end  the  estate  shall  not  be  transmitted  to  the 
foreign  administrator  until  his  creditors  who  are  citizens  of  this  state 
shall  have  received  their  just  proportion  that  would  be  due  them  if 
the  whole  estate,  wherever  found,  were  divided  among  all  of  said 
creditors  in  proportion  to  their  respective  debts,  without  preferring 
any  species  of  debt  to  another. 

i6As  to  transmission  of  balance  to  the  domiciliary  administrator  after  the 
payment  of  local  creditors,  see.  also,  ^Matter  of  Accouutins  of  Hushes,  95  N. 
Y.  55  (1SS4) :  Young  v.  Wittenmvre,  123  111.  303,  14  N.  E.  SG9  (1888) ;  Welles' 
Estate,  IGl  Pa.  218.  28  Atl.  1116,  1117  (1894)  ;  In  re  Gable's  Estate,  79  Iowa, 
178,  44  N.  W.  352,  9  L.  R.  A.  218  (1890) ;  Smith  v.  Smith,  174  111.  52,  50  N.  E. 
1083,  43  L.  R.  A.  403  (1898), 


712  PARTICULAR  SUBJECTS.  (Part  2 

"Sec.  265.  No  creditor  not  being  a  citizen  of  this  state  shall  be 
paid  out  of  the  assets  found  here  until  those  who  are  citizens  shall 
have  received  their  just  proportion,  as  provided  in  the  preceding  sec- 
tion." 

"Sec.  267.  No  one  shall  receive  more  than  would  be  due  him  if 
the  whole  estate  were  divided  ratably  among  all  creditors  who  shall 
have  duly  proven  their  claims  in  the  court  having  jurisdiction  thereof 
in  this  state."  " 

Wilkin,  C.  J.  It  is  insisted  by  appellants  that  they  are  entitled 
to  receive  full  distributive  shares  of  the  assets  reported  by  the  admin- 
istrator to  the  probate  court  of  Clinton  county,  without  in  any  way  be- 
ing charged  with  the  amounts  received  from  the  Missouri  assets.  The 
proposition  is  so  manifestly  unjust  to  other  creditors  of  the  insolvent 
estate  that  it  should  be  sustained  only  in  obedience  to  strict  and  im- 
perative requirements  of  the  law.  The  general  policy  of  the  law  in  all 
jurisdictions,  so  far  as  we  are  aware,  is  that  all  the  property  of  a  de- 
ceased insolvent  debtor  not  set  apart  for  the  widow  or  minor  children 
shall  become  assets  in  the  hands  of  his  administrator  for  the  payment 
pro  rata  of  all  his  debts  according  to  classification,  no  matter  where 
the  assets  may  be  found  or  the  creditors  reside.  In  Dawes  v.  Head,  3 
Pick.  (Mass.)  128,  it  was  said  by  Parker,  J.:  "We  cannot  think  that 
in  any  civilized  country  advantage  ought  to  be  taken  of  the  accidental 
circumstances  of  property  being  found  within  its  territory  which  may 
be  reduced  to  possession  by  the  aid  of  its  courts  and  law,  to  sequester 
the  whole  for  the  use  of  its  own  subjects  or  citizens,  and  where  it 
shall  be  known  that  all  the  estate  and  effects  of  the  deceased  are  in- 
sufficient to  pay  his  just  debts.  Such  a  doctrine  would  be  derogatory 
to  the  character  of  any  government."  The  above  quoted  sections  263 
and  264  of  the  Missouri  statute,  as  well  as  other  sections  of  that  stat- 
ute, clearly  recognize  this  just  and  equitable  rule.  Our  statute  provides 
that,  "when  the  estate  is  insufficient  to  pay  the  whole  of  the  demands, 
the  demands  in  any  one  class  shall  be  paid  pro  rata,  whether  the  same 
are  due  by  judgment,  writing  obligatory  or  otherwise,  except  as  other- 
wise provided."  1  Starr  &  C.  Ann.  St.  1896,  c.  3,  §  71.  Unless,  there- 
fore, appellants  have  shown  that  their  claims  are  in  some  way  excep- 
tions to  the  general  rule,  the  judgment  of  the  circuit  court  is  right, 
and  should  be  affirmed. 

It  seems  to  be  thought  by  appellants'  counsel  that  they  are  entitled 
to  a  preference  over  other  creditors,  as  to  the  Missouri  assets,  on  the 
principle  that  in  the  settlement  of  insolvent  estates  a  creditor  shall  be 
allowed  to  prove  his  whole  debt,  without  regard  to  any  collateral  se- 
curity he  may  hold,  and  be  entitled  to  a  dividend  on  the  whole  claim 
so  ahowed— citing  Furness  v.  Bank,  147  111.  570,  35  N.  E.  624 ;  First 
Nat.  Bank  of  Peoria  v.  Commercial  Nat.  Bank,  151  111.  308,  37  N.  E. 

17  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


Ch.    5)  FOREIGN  ADMINISTRATIONS.  713 

1019;  Levy  v.  Bank,  158  111.  88,  42  N.  E.  129,  30  L.  R.  A.  380;  and 
cases  frcJm  other  jurisdictions  holding  the  same  rule.  No  argument 
seems  necessary  to  show  that  the  doctrine  of  these  cases  can  have  no 
application  to  the  question  at  issue.  How  can  it  be  said  that  the  Mis- 
souri property  was  in  any  sense  a  collateral  security  for  appellants' 
claims,  or  that  it  was  a  fund  open  to  them  for  the  payment  of  their 
debts,  rather  than  those  of  all  other  creditors?  At  the  time  of  the 
death  of  Ramsey,  he  owned  the  property  free  from  any  lien  whatever 
in  their  favor,  and  it  was  liable  for  the  payment  of  all  his  debts. 

It  is  further  contended  that  appellants  are  entitled  to  a  preference 
over  other  creditors  in  that  property  because  of  some  superior  dili- 
gence on  their  part.  No  reason  or  authority  is  cited  in  support  of 
this  contention,  and  none,  we  think,  can  be.  It  was  undoubtedly  the 
right  of  all  the  creditors  of  Rufus  N.  Ramsey  to  have  the  Missouri 
estate,  as  well  as  his  Illinois  property,  converted  into  money  and  ap- 
plied in  payment  of  his  debts,  and  it  was  the  duty  of  the  resident  ad- 
ministrator to  see  that  that  purpose  was  accomplished.  Being  a  non- 
resident of  the  state  of  Missouri,  and  therefore  disqualified  by  the 
statute  of  that  state  from  taking  letters  of  administration  himself, 
it  was  his  duty  to  procure  administration  in  the  name  of  a  resident. 
It  was  undoubtedly,  also,  the  privilege  of  any  creditor  to  cause  such 
administration.  It  was  also  proper  for  Illinois  creditors  to  file  their 
claims  and  have  them  allowed  in  the  probate  court  of  St.  Louis,  and 
to  cause  the  real  estate  there  to  be  sold  for  the  payment  of  the  debts 
of  Rufus  N.  Ramsey,  but  not  for  the  payment  of  the  claims  probated 
there  alone,  because,  by  the  express  provisions  of  the  statute  of  that 
state,  the  estate  being  insolvent,  the  property  found  in  Missouri  was 
to  be  so  disposed  of  that  all  his  creditors  there  and  elsewhere  should 
receive  an  equal  share,  in  proportion  to  their  respective  debts.  There 
was  no  occasion  for  diligence  upon  the  part  of  creditors  in  filing  their 
claims  there.  They  each  had  a  right  to  rely  upon  the  Missouri  statute 
for  protection  against  the  claim  now  made  by  appellants. 

Upon  the  death  of  a  person  intestate,  leaving  assets  in  different 
states  or  countries,  the  administration  in  the  domicile  of  the  deceased 
is  the  principal  administration,  through  which,  in  contemplation  of  law, 
assets  are  to  be  distributed  in  payment  of  his  debts.  Young  v.  Wit- 
tenmyre,  123  111.  303,  14  N.  E.  869.  Administration  in  other  states  or 
jurisdictions  must  be  held  in  order  to  collect  the  debts  and  reduce 
the  assets  into  money,  which  are  known  as  ancillary  or  auxiliary  ad- 
ministrations. In  the  absence  of  statutory  provision,  it  is  the  duty 
of  the  auxiliary  administrators  to  collect  the  assets,  reduce  them  to 
money,  and  transmit  them  to  the  principal  administrator ;  or  they  may, 
under  certain  circumstances,  pay  claims  probated  there,  transmit- 
ting only  what  remains  in  their  hands  to  the  principal  administrator. 
Where,  however,  the  estate  is  insolvent,  it  has  been  held  (and  we  think 
with  reason  and  justice)  that  the  auxiliary  administrator  has  no  right 
to  pay  resident  claimants,  or  those  who  have  filed  their  claims  there. 


714  PARTICULAR  SUBJECTS.  (Part   2 

more  than  their  "pro  rata  share  of  the  whole  estate.  Dawes  v.  Head, 
3  Pick.  (Mass.)  128;  Davis  v.  Estey,  8  Pick.  (Mass.)  475;  Miner  v. 
Austin,  45  Iowa,  221,  24  Am.  Rep.  763 ;  2  Kent,  Comm.  434.  Mani- 
festly, under  section  263  of  the  Missouri  statute,  the  administrator 
there  had  no  right  to  pay  these  appellants  more  than  their  proportion- 
ate part  of  the  whole  assets,  taking  into  account  all  seventh-class  "cred- 
itors, there  and  elsewhere,"  even  though  the  property  in  that  state 
had  sold  for  enough  to  pay  them  in  full ;  and,  as  we  have  said,  every 
"creditor,  there  or  elsewhere,"  had  a  right  to  rely  upon  his  perform- 
ing his  duty  under  that  statute.  He  might  have  complied  with  the 
request  of  appellee,  and,  after  paying  the  small  claims  of  resident 
creditors,  transmitted  the  balance  of  the  fund  in  his  hands  for  dis- 
tribution. However,  his  refusal  to  do  so,  and  the  refusal  of  the  St. 
Louis  probate  court  to  order  him  to  do  so,  did  not  render  it  imprac- 
ticable to  still  give  effect  to  said  section  263  and  the  provisions  of  our 
own  statute  above  quoted. 

It  is  to  be  observed  that  these  appellants  are  not  content  with'  what 
the  Missouri  court  gave  them,  but  come  into  the  probate  court  of 
Clinton  county  and  demand  that  they  shall  be  allowed  to  participate 
in  the  assets  in  the  hands  of  the  appellee,  the  resident  administrator. 
Having  done  so,  we  entertain  no  doubt  that  the  latter  court  had  the 
power,  and  that  it  was  its  duty,  to  require  them  to  account  for  that 
which  they  had  received  under  the  Missouri  administration,  and  to  or- 
der a  distribution  pro  rata  among  all  the  seventh-class  creditors.  The 
judgment  of  the  circuit  coUrt  to  that  eft'ect  was  right,  and  it  was  prop- 
erly afhrmed  by  the  appellate  court. 

Judgment  afhrmed.^^ 

18  Where  the  estate  as  a  whole  is  insolvent,  a  creditor  who  has  received  full 
payment  in  the  ancillary  jurisdiction  cannot  be  compelled  by  the  courts  of  the 
domicile  of  the  decedent  to  refund  a  part  of  what  he  has  received.  Schneller 
V.  Vance,  8  La.  .506,  28  Am.  Dec.  140  (1835). 

All  questions  relating  to  the  administration  of  the  estate  in  the  ancillary 
jurisdiction  are  governed  exclusively  by  the  local  law.  Goodall  v.  Marshall, 
11  N.  H.  88,  35  Am.  Dec.  472  (1840) ;  Miner  v.  Austin,  45  Iowa,  221,  24  Am. 
Rep.  763  (1876).  In  the  absence  of  proof  that  they  have  received  something 
abroad,  foreign  creditors  are  ordinarily  allowed  to  come  in  pari  passu  with 
the  local  creditors  of  the  same  class.  In  re  Kloebe,  1884,  28  Ch.  Div.  175; 
Tyler  v.  Thompson,  44  Tex.  497,  23  Axq.  Rep.  600  (1876).  But  see  Shegogg  v. 
Perkins,  34  Ark.  117  (1879). 

The  ancillai'y  administrator  is  responsible  only  to  the  court  that  appoint- 
ed him.  In  re  Crawford,  68  Ohio  St.  58,  67  N.  B.  156,  96  Am.  St.  Rep.  648 
(1903).  His  responsibility  ceases  after  the  assets  have  been  duly  transmitted 
to  the  domiciliary  administrator.  Emery  v.  Batchelder,  132  Mass.  452  (18S2). 
His  accountability  does  not  extend  to  assets  received  by  him  in  the  state  of 
the  principal  administration.     Fay  v.  Haven,  3  Mete.  (Mass.)  109  (1841). 

All  questions  of  priority  in  the  payment  of  debts,  both  in  the  domiciliary 
and  ancillary  jurisdictions,  are  determined  by  the  lex  fori.  Smith  v.  Union 
Bank  of  Georgetown,  5  Pet.  518,  8  L.  Ed.  212  (1831) ;  Pardo  v.  Bingham  [1S68J 
Ij.  R.  6  Eq.  485.  Except,  perhaps,  with  respect  to  foreign  assets.  Cook  v. 
Gregson,  2  Dr.  286  (1854);    Estate  of  Rowland,  1  N,  Y.   St.  Rep.  308  (1886). 

An  ancillary  administrator  may  bo  authorized  to  soil  land  for  the  payment 
of  debts  proved   within  the  ancillary  jurisdiction,   notwithstanding  the  per- 


Ch.    5)  FOREIGN  ADMINISTRATIONS.  715 

sonal  estate  at  the  domicile  of  tlie  deceased  has  not  been  exhausted.  Rosen- 
thal V.  ReniclJ,  44  111.  202  (1867) ;  Cowden  v.  Jacobson,  1G5  Mass.  240,  43  N.  E. 
98  (ISOG) ;  Lawrence's  Appeal,  49  Conn.  411  (1881). 

As  to  the  jurisdiction  of  a  court  of  ancillary  administration  to  decree  an 
allowance  to  the  widow  of  a  nonresident  decedent  out  of  assets  within  such 
jurisdiction,  see  11  L.  R.  A.  (N.  S.)  361-363. 

Jurisdiction  to  Appoint  Adminisieatob. — See,  in  general,  24  L.  R.  A.  684- 
GSO. 

Jurisdiction  to  appoint  an  ancillary  administrator  is  not  dependent  upon 
the  existence  of  an  administrator  at  the  domicile  of  the  deceased.  Stevens 
V.  Gaylord,  11  Mass.  256  (1814);    Green  v.  Rugely,  23  Tex.  539  (1859). 

An  ancillary  administrator  may  be  appointed  in  any  jurisdiction  where 
there  are  assets  belonging  to  the  estate.  Jurisdiction  has  been  taken,  though 
the  oniy  assets  found  within  the  state  consisted  of  choses  in  action.  Jordan  v. 
Chicago  &  Northwestern  R.  R.  Co.,  125  Wis.  581,  104  N.  W.  803,  1  L.  R.  A.  (N. 
S.)  885.  110  Am.  St.  Rep.  865  (1905). 

In  such  a  case,  however,  the  application  for  the  appointment  of  an  ancil- 
lary administrator  has  been  denied  on  the  ground  that  the  administration  of 
a  decedent's  estate  should  be  one  as  far  as  possible.  Putnam  v.  Pitney,  45 
Minn.  242,  47  N.  W.  790,  11  L.  R.  A.  41  (1891). 

Property  of  an  estate  administered  in  another  jurisdiction  is  not  assets  in 
fhe  state  to  which  it  is  subsequently  removed.  Currie  v.  Bircham,  1  Dow.  & 
Ry.  35  (1822) :  Wheelock  v.  Pierce.  6  Cush.  (Mass.)  288  (18-50).  Whether  or  not 
administration  can  be  granted  with  respect  to  unadministered  property  so  re- 
moved depends  upon  the  terms  of  the  statute  upon  which  the  jurisdiction  of 
the  particular  probate  court  rests.  In  favor  of  such  jurisdiction:  Green  v. 
Rugely,  23  Tex.  .539  (1859) ;  Pinney  v.  IMcGregory,  102  Mass.  186  (1869) ;  Turner 
V.  Campbell,  124  Mo.  App.  133,  101  S.  W.  119  (1907).  See.  also,  In  re  McCabe. 
84  App.  Div.  145,  82  N.  Y.  Supp.  180  (1903),  affirmed  177  N.  Y.  584,  69  N.  E. 
1126.     Contra:     Embry  v.  Millar,  1  A.  K.  Marsh.  (Ky.)  300.  10  Am.  Dec.  732 

asis). 

The  court  of  the  state  where  the  decedent  was  domiciled  and  where  all  the 
creditors  of  the  estate  reside  may  enjoin  such  creditors  from  petitioning  for 
the  appointment  of  an  administrator  in  another  state.  In  re  Williams'  Estate. 
130  Iowa,  553,  107  N.  W.  608  (1906). 

Choses  in  action,  for  the  purpose  of  administration,  are  regarded  as  assets 
in  the  state  where  the  debtor  resides.  Dial  v.  Gary,  14  S.  C.  573.  37  Am. 
Rep.  737  (1880).  The  same  is  true  of  negotiable  paper.  Wvman  v.  Halstead, 
109  U.  S.  654,  3  Sup.  Ct.  417.  27  L.  Ed.  1068  (1884).  See.  also,  Moore  v. 
Jordan,  36  Kan.  271,  13  Pac.  337,  59  Am.  Rep.  550  (1887).  But  a  voluntary 
payment  of  a  note  will  not  be  sustained,  unless  the  administrator  has  pos- 
session of  the  instrument.  Amsden  v.  Danielson,  19  R.  I.  533,  35  Atl.  70 
(1896).  Bonds  are  assets  in  the  state  where  they  are  located  at  the  death  of 
their  owoier.  Beers  v.  Shannon,  73  N.  Y.  292  (1878).  Judgment  debts  are 
held  to  be  assets  in  the  jurisdiction  where  the  judgments  are  recorded. 
Anonymous,  8  Mod.  244.  Some  of  the  American  courts,  however,  regard 
them,  like  simple  contract  debts,  as  assets  where  the  debtor  resides.  Swan- 
cy  V.  Scott.  9  Humph.  (Tenn.)  327  (1848);  Miller  v.  Hoover,  121  Mo.  App. 
568,  97  S.  W.  210  (1906).  Shares  of  stock  are  assets  at  the  domicile  of  the 
corporation.  Grayson  v.  Robertson,  122  Ala.  330.  25  South.  229.  82  Am.  St. 
Rep.  80  (1898) ;  Murphy  v.  Crouse,  135  Cal.  14,  66  Pac.  971,  87  Am.  St.  Rep. 
90  (1901).  A  policy  of  insurance  constitutes  an  asset  in  the  state  where  the 
debtor  resides.  A  foreign  insurance  company,  for  the  purpose  of  this  rule, 
will  be  regarded  as  having  a  residence  in  every  jurisdiction  where  it  is  sub- 
ject to  suit,  at  lea.st  where  the  decedent  was  domiciled  in  the  latter  state, 
or  the  policy  was  therein  at  the  time  of  the  decedent's  death.  New  England 
Mut.  Life  Ins.  Co.  v.  Woodworth,  111  U.  S.  138,  4  Sup.  Ct.  364.  28  L.  Ed.  379 
(1884)  ;  Sulz  v.  Mutual  R.  F.  L.  Ass'n,  145  N.  Y.  563,  40  N.  E.  2^12,  28  L.  R. 
A.  379  (1895)  ;  New  York  Life  Ins.  Co.  v.  Smith,  67  Fed.  694,  14  C.  C.  A.  635 
(1895) ;  Ellis  v.  Insurance  Co.,  100  Tenn.  177,  43  S.  W.  766  (1897).  If  juris- 
diction has  attached  in  one  state  with  resi>ect  to  an  insurance  policy,  comity 
\A'ill  cause  it  to  be  respected  elsewhere.  Sulz  v.  Mutual  R.  F.  L.  Ass'n,  145 
N.  Y.  563,  40  N.  E.  242,  28  L.  R.  A.  379  (1895) ;  Traflet  v.  Empire  Life  Ins. 
Co.,  64  N.  J.  Law,  387,  46  Atl.  204  (1900).    It  has  been  held  that  an  insurance 


716  PARTICULAR  SUBJECTS.  (Part  2 

SECTION   2.— GUARDIANS. 


LAMAR  V.  MICOU. 

(Supreme  Court  of  the  United  States,  1SS4.     112  U.  S.  452,  5  Sup.  Ct.  221, 

28  L.  Ed.  751.) 

William  W.  Sims,  a  citizen  of  Georgia,  died  in  1850,  leaving  a  wid- 
ow and  two  infant  daughters,  Martha  M.  Sims  and  Ann  C.  Sims. 
In  1853,  the  widow  married  Rev.  Richard  M.  Abercrombie,  and,  to- 
gether with  her  children,  went  to  reside  with  him  in  New  York.  Up- 
on her  petition  Gazaway  B.  Lamar,  at  that  time  a  resident  of  Brook- 
lyn, N.  Y.,  was  appointed  guardian  of  the  person  and  estate  of  each 
child  by  the  surrogate  of  the  county  of  Richmond,  N.  Y.  Lamar  in- 
vested in  1856  a  part  of  the  moneys  belonging  to  each  ward  in  stock 
of  the  Bank  of  the  Republic  in  New  York,  and  in  1857  a  part  of  such 
moneys  in  stock  of  the  Bank  of  Commerce  at  Savannah.  Several 
months  after  Lamar's  appointment,  in  1856,  Mr.  and  Mrs.  Aber- 
crombie removed  to  Hartford,  Conn.,  taking  the  children  with  them, 
where  they  resided  until  their  mother's  death  in  1859.  After  that 
the  children  lived  with  their  grandmother  and  aunt  in  Georgia.  In 
1860  the  aunt  married  Benjamin  H.  Micou,  of  Alabama,  and  the 
children  and  the  grandmother  thereafter  lived  with  Mr.  and  Mrs. 
Micou.  From  1855-1859,  Lamar  resided  partly  in  Georgia  and  part- 
ly in  New  York. 

During  the  Civil  War,  fearing  that  the  stock  in  the  Bank  of  the 
Republic  at  New  York  would  be  confiscated  by  the  United  States, 
Lamar  sold  it  and  invested  it  in  guaranteed  bonds  in  the  cities  of 
New  Orleans,  Memphis,  and  Mobile,  and  of  the  East  Tennessee  & 
Georgia  Railroad  Company,  depositing  the  bonds  in  a  bank  in  Can- 
ada. He  invested,  also,  from  time  to  time,  the  property  of  his  wards 
that  was  within  the  so-called  Confederate  States  in  Confederate  States 

policy  is  an  asset  in  tlie  state  wliei'e  it  is  payable.  Pritcliard  v.  Standard 
Life  Ins.  Co.,  7  Ont.  Rep.  188. 

Continental  Law.— Title  to  both  real  and  personal  property,  upon  the 
death  of  the  owner,  vests  under  the  law  of  France,  Germany,  and  Italy  in 
the  heirs,  in  accordance  with  the  Roman  doctrine  of  universal  succession. 

The  doctrine  that  every  grant  of  administration  is  confined  in  its  author- 
ity and  operation  to  the  limits  of  the  territory  of  the  government  which 
grants  it,  and  can  act  beyond  such  territory  only  by  way  of  comity,  is  not  rec- 
ognized. An  administrator  appointed  in  England  or  the  United  States  may 
sue  as  the  representative  of  the  estate  without  the  need  of  a  previous  exe- 
quatur. Trib.  Civ.  Seine,  May  12,  1891  (19  Clunet,  487).  In  accordance  with 
the  general  rule,  however,  which  requires  an  exequatur  for  a  foreign  judg- 
ment or  decree,  if  so-called  acts  of  execution  are  in  question,  such  exequatur 
of  the  decree  under  which  he  was  appointed  must  be  obtained  before  a  for- 
eign executor  or  administrator  will  be  placed  in  possession  of  the  local  as- 
sets.    French  Cass.  March  9,  18.j3  (S.  1853,  1,  269). 


Ch.    5)  FOREIGN  ADMINISTRATIONS.  717 

bonds,  in  bonds  of  the  individual  states  which  composed  the  Con- 
federacy, and  in  bonds  of  cities  and  of  railroad  corporations. 

Martha  M.  Sims  died  in  1864,  leaving  her  sister  Ann  C.  Sims  as 
her  next  of  kin.  At  the  suggestion  of  Lamar  and  upon  the  request 
of  Ann  C.  Sims,  Micou  was  appointed  guardian  of  the  property  of 
Ann  C.  Sims  in  the  state  of  Alabama.  Lamar  died  in  1874,  and  Ann 
C.  Sims  died  in  1878.  In  June,  1878,  Mrs.  Micou  was  appointed  ad- 
ministratrix de  bonis  non  of  Martha  'M.  Sims  in  New  York,  and  as 
such  administratrix  filed  a  bill  of  revivor  for  an  accounting  or- 
iginally filed  against  Lamar  in  the  Supreme  Court  of  New  York  by 
Ann  C.  Sims  as  administratrix  of  Martha  M.  Sims,  and  removed  to 
the  Circuit  Court  of  the  United  States  for  the  Southern  District 
of  New  York.  The  Circuit  Court  held  all  Lamar's  investments  to 
have  been  breaches  of  trust.  A  final  decree  was  entered  in  favor 
of  plaintiff  for  the  sum  of  $18,705.19.  1  Fed.  14;  7  Fed.  180.  The 
defendant  appealed.^" 

Gray,  J.^°  *  *  *  'pj^g  rules  of  investment  varying  so  much  in 
the  different  states,  it  becomes  necessary  to  consider  by  what  law  the 
management  and  investment  of  the  ward's  property  should  be  gov- 
erned. As  a  general  rule  (with  some  exceptions  not  material  to  the 
consideration  of  this  case)  the  law  of  the  domicile  governs  the  status  of 
a  person,  and  the  disposition  and  management  of  his  movable  property. 
The  domicile_of_an  infant  is  universally  held  to  be  the  fittestplace 
for  the  appointment  of  a  guardian  of  his  person  and  ejtate ;._  although, 
for  the  protection  of  either,  a  guardian  may  be  appointed  in  any  state 
where  the_p£isop  nr_anv  pro2erfy  ot  an  mtant  may  be  lounge  On  the 
continent  of  Europe,  the  guardian  appomted  m  the  state  of  tne  domicile 
of  the  ward  is  generally  recognized  as  entitled  to  the  control  and 
dominion  of  the  ward  and  his  movable  property  everywhere,  and 
guardians  specially  appointed  in  other  states  are  responsible  to  the 
principal  guardian.  By  the  law  of  England  and  of  this  country,  a 
guardian  appointed  by  the  courts  of  one_state  has  no"authoritv  ovxr 
the  warcl  s  person  or  property  m  anotheT  state,  except  so  far  as  al- 
lo\\-ed  by  the  comitv  of  that  state,  as  expressed  through  its  legisla- 
ture  or  its  courts ;  but  the  tendency  of  modern  statutes  and  deci- 
sions is  to  defer  to  tlielawof  the  domicile,  and  to_siipport  the_au- 
thority  of  the  guardian~appointed  tlierg.  Ho3't  v.  Sprague,  103  U.  S. 
613,  631,  26  L.  Ed.  585,  and  authorities  cited;  Morrell  v.  Dickey, 
1  Johns.  Ch.  (N.  Y.)  153;  Woodworth  v.  Spring,  4  Allen  (Mass.) 
321 ;  Milliken  v.  Pratt,  125  Mass.  374,  377,  378,  28  Am.  Rep.  241 ; 
Leonard  v.  Putnam,  51  N.  H.  247,  12  Am.  Rep.  106 ;  Com.  v.  Rhoads, 
37  Pa.  60 ;  Sims  v.  Renwick,  25  Ga.  58 ;  Dicey,  Dom.  172-176 ;  Westl. 
Priv.  Int.  Law,  (2d  Ed.)  48-50 ;  Whart.  Confl.  Laws,  (2d  Ed.)  §§  259- 

19  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 

20  Only  a  part  of  the  opinion  is  given. 


718 


PARTICULAR  SUBJECTS. 


(Part  2 


^ 


•x/ 


268.  An  infant  cannot  change  his  own  domicile.  As  infants  have 
the  domTcTle  of  lEelr  father7TTe"TTra3ri:1iange'''fTTierr  domicile  by  chang- 
ing his  own;  and  after  his  death  the  mother,  while  she  remains  a 
widow,  may  likewise,  by  changing  her  domicile,  change  the  domicile 
of  the  infants;  the  domicile  of  the  children,  in  either  case,  follow- 
ing the  independent  domicile  of  their  parent.  Kennedy  v.  Ryall,  67  N. 
Y.  379;  Potinger  v.  Wightman,  3  Mer.  67;  Dedham  v.  Natick,  16 
IMass.  135;  Dicey,  Dom.  97-99.  But  when  the  widow,  by  mar- 
rying again,  acquires  the  domicile  of  a  second  husband,  she  does  not, 
by  taking  her  children  by  the  first  husband  to  live  with  her  there, 
make  the  domicile  which  she  derives  from  the  second  husband  their 
domicile;  and  they  retain  the  domicile  which  they  had,  before  her 
second  marriage,  acquired  from  her  or  from  their  father.  Cumner 
V.  Milton,  3  Salk.  259;  S.  C.  Holt,  578;  Freetown  v.  Taunton,  16 
Mass.  52;  School  Directors  v.  James,  2  Watts  &  S.  (Pa.)  568,  37  Am. 
Dec.  525 ;  Johnson  v.  Copeland,  35  Ala.  521 ;  Brown  v.  Lynch,  2 
Bradf .  Sur.  (N.  Y.)  214 ;  Mears  v.  Sinclair,  1  W.  Va.  185 ;  Pot.  In- 
troduction Generale  aux  Coutumes,  No.  19 ;  1  Burge,  Col.  &  Foreign 
Law,  39 ;  4  Phillim.  Int.  Law  (2d  Ed.)  §  97. 

The  preference  due  to  the  law  of  the  ward's  domicile,  and  the  im- 
portance of  a  uniform  administration  of  his  whole  estate,  require 
that,  as  a  general  rule,  the  management  and  investment  of  his  prop- 
erty should  be  governed  by  the  law  of  the  state  of  his  domicile,  es- 
pecially when  he  actually  resides  there,  rather  than  by  the  law  of 
any  state  in  which  a  guardian  may  have  been  appointed  or  may  have 
received  some  property  of  the  ward.  If  the  duties  of  the  guardian 
were  to  be  exclusively  regulated  by  the  law  of  the  state  of  his  ap- 
pointment, it  would  follow  that  in  any  case  in  which  the  temporary 
residence  of  the  ward  was  changed  from  state  to  states,  from  con- 
siderations of  health,  education,  pleasure,  or  convenience,  and  guard- 
ians were  appointed  in  each  state,  the  guardians  appointed  in  the  dif- 
ferent states,  even  if  the  same  persons,  might  be  held  to  diverse  rules 
of  accounting  for  different  parts  of  the  ward's  property.  The  form 
of  accounting,  so  far  as  concerns  the  remedy  onl}^,  must,  indeed,  be 
according  to  the  law  of  the  court  in  which  relief  is  sought;  but  the 
general  rule  by  which  the  guardian  is  to  be  held  responsible  for  the 
investment  of  the  ward's  property  is  the  law  of  the  place  of  the  dom- 
icile of  the  ward.  Bar,  Int.  Law,  §  106  (Gillespie's  Translation,)  p. 
438;  Whart.  Confl.  Laws,  §  259.  It  may  be  suggested  that  this 
would  enable  the  guardian,  by  changing  the  domicile  of  his  w-ard, 
to  choose  for  himself  the  law  by  which  he  should  account.  Not 
so.  The  father,  and  after  his  death  the  widowed  mother,  being  the 
natural  guardian,  and  the  person  from  whom  the  ward  derives  his 
domicile,  may  change  that  domicile.  But  the  ward  does  not  derive 
.ji  dornicile  from  any  other  than  a  natural  guardian.  ATtestamentary 
guardian  nomTnaT^rtrij}'  thc~iathcr  may  have  the  same  control  of  the 


Ch.    5)  FOREIGN   ADMINISTRATIONS.  719 

ward's  domicile  that  the  father  had.  Wood  v.  Wood,  5  Paige  (X. 
Y.)  596,  605,  28  Am.  Dec!  451.  And  any  guardian,  appointed  in 
the  state  of  the  domicile  of  the  ward,  has  been  generally  held  to  have 
the  power  of  changing  the  ward's  domicile  from  one  county  to  an- 
other within  the  same  state  and  under  the  same  law.  Cutts  v.  Has- 
kins,  9  Mass.  543 ;  Holyoke  v.  Haskins,  5  Pick.  (Mass.)  20,  16  Am. 
Dec.  372;  Kirkland  v.  Whately,  4  Allen  (Mass.)  462;  Anderson  v. 
Anderson,  42  Vt.  350,  1  Am.  Rep.  334;  Ex  parte  Bartlett,  4  Bradf. 
Sur.  (N.  Y.)  221 ;  The  Queen  v.  Whitby,  L.  R.  5  O.  B.  325,  331. 
But  it  is  very  doubtful,  to  say  the  least,  whether  even  a  guardian 
appointed  in  the  state  of  the  domicile  of  the  ward  (not  being  the 
natural  guardian  or  a  testamentary  guardian)  can  remove  the  ward's 
domicile  beyond  the  limits  of  the  state  in  which  the  guardian  is  ap- 
pointed, and  to  which  his  legal  authority  is  confined.  Douglas  v. 
Douglas,  L.  R.  12  Eq.  617,  625 ;  Daniel  v.  Hill,  52  Ala.  430 ;  Story 
Confl.  Laws,  §  506,  note;  Dicej^  Dom.  100,  132.  And  it  is  quite 
clear  that  a  guardian  appointed  in  a  state  in  which  the  ward  is  tem- 
porarily residing,  cannot  change  the  ward's  permanent  domicile  from 
one  state  to  another.  The  case  of  such  a  guardian  differs  from  that 
of  an  executor  of,  or  a  trustee  under,  a  will.  In  the  one  case,  the 
title  in  the  property  is  in  the  executor  or  the  trustee;  in  the  other, 
the  title  in  the  property  is  in  the  ward,  and  the  guardian  has  only 
the  custody  and  management  of  it,  with  power,  to  change  its  invest- 
ment. The  executor  or  trustee  is  appointed  at  the  domicile  of  the 
testator;  the  guardian  is  most  fitly  appointed  at  the  domicile  of  the 
ward,  arid  may  be  appointed  in  any  state  in  which  the  person  or  any 
property  of  the  ward  is  found.  The  general  rule  which  governs  the 
administration  of  the  property  in  the  one  case  may  be  the  law  of  the 
domicile  of  the  testator;  in  the  other  case,  it  is  the  law  of  the  domicile 
of  the  ward. 

As  the  law  of  the  domicile  of  the  ward  has  no  extraterritorial  ef-  /•  i   ^'' 

feet,  except  by  the  comity  of  the  state  where  the  property  is  situated,   W-Cx^_a^>*>«v-# 
or  v^here  the  guardian  is  appointed,  it  cannot,  of  course,  prevail 
against  a  statute  of  the  state  in  which  the  question  is  presented  for 
adjuclication,  expressly  applicable  to  the  estate  of  a  ward  domiciled 
elsewhere.     Hoyt  v.  JSprague,  103  Ursl~613,  26  L.  Ed.  585.     Cases  Q) 

may  also  arise  with  facts  so  pecviliar  or  so  complicated  as  to  modify 
the  degree  of  influence  that  the~court  in  which  the  guardian  is  called 
to  account  may  allow  to  the  law  of  the  domicile  of  the  ward,  con- 
sistently with  doing  justice  to  the  parties  before  it.  And  a  guardian,  — ^ 
who  had  in  good  faith  conformed. t"^  thp  law  nf  the  state  in  which  \^^ 
h_e_was  appointed,  might,  perhaps,  be  excused  for  not  having  com- 
pliea~vvTth  stricter  rules  prevailing  at  the  domicile  of  the  ward.  But 
in  a  case  in  which  the  domicile  of  the  ward  has  always  been  in  a 
state  whose  law  leaves  much  to  the  discretion  of  the  guardian  in 
the  matter  of  investments,  and  he  has  faithfully  and  prudently  exer- 


O 


^ 


720  PARTICULAR  SUBJECTS.  (Part  2 

cised  that  discretion  with  a  view  to  the  pecuniary  interests  of  the 
ward,  it  would  be  inconsistent  with  the  principles  of  equity  to  charge 
him  with  the  amount  of  the  moneys  invested,  merely  because  he  has 
not  complied  with  the  more  rigid  rules  adopted  by  the  courts  of  the 
state  in  which  he  was  appointed.  The  domicile  of  William  VV.  Sims, 
during  his  lil[e  and  at  the  time  of  his  death  in  1850,  was  in  Georgia. 
This  domicile  continued  to  be  the  domicile  of  his  widow  and  of  their 
infant  children  until  they  acquired  new  ones.  In  1853  the  widow, 
by  marrying  the  Rev.  Mr.  Abercrombie,  acquired  his  domicile. 
But  she  did  not,  by  taking  the  infants  to  the  home,  at  first  in  New 
York  and  afterwards  in  Connecticut,  of  her  new  husband,  who  was 
of  no  kin  to  the  children,  was  under  no  legal  obligation  to  support 
them,  and  was,  in  fact,  paid  for  their  board  out  of  their  property, 
make  his  domicile,  or  the  domicile  derived  by  her  from  him,  the 
domicile  of  the  children  of  the  first  husband.  Immediately  upon 
her  death  in  Connecticut,  in  1859,  these  children,  both  under  10  years 
of  age,  were  taken  back  to  Georgia  to  the  house  of  their  father's 
mother  and  unmarried  sister,  their  own  nearest  surviving  relatives ; 
and  they  continued  to  live  with  their  grandmother  and  aunt  in  Geor- 
gia until  the  marriage  of  the  aunt  in  January,  1860,  to  Mr.  Micou, 
a  citizen  of  Alabama,  after  which  the  grandmother  and  the  children 
resided  with  Mr.  and  Mrs.  Micou  at  their  domicile  in  that  state. 

Upon  these  facts,  the  domicile  of  the  children  was  always  in  Geor- 
gia from  their  birth  until  January,  1860,  and  thenceforth  was  either 
in  Georgia  or  in  Alabama.  As  the  rules  of  investment  prevailing 
before  1863  in  Georgia  and  in  Alabama  did  not  substantially  differ, 
the  question  in  which  of  those  two  states  their  domicile  was  is  im- 
material to  the  decision  of  this  case;  and  it  is  therefore  unnecessary 
to  consider  whether  their  grandmother  was  their  natural  guardian, 
and  as  such  had  the  power  to  change  their  domicile  from  one  state 
to  another.  See  Hargrave's  note  Q>Q  to  Co.  Litt.  88b ;  Reeve,  Dom. 
Rel.  315;  2  Kent,  Comm.  219;  Code  Ga.  1861,  §§  175-1,  2452;  Darden 
V.  Wyatt,  15  Ga.  414.  Whether  the  domicile  of  Lamar  in  Decem- 
ber, 1855,  when  he  was  appointed  in  New  York  guardian  of  the  in- 
fants, was  in  New  York  or  in  Georgia,  does  not  distinctly  appear, 
and  is  not  material ;  because,  for  the  reasons  already  stated,  wherever 
his  domicile  was,  his  duties  as  guardian  in  the  management  and  in- 
vestment of  the  property  of  his  wards  were  to  be  regulated  by  the 
law  of  their  domicile.     *     *     * 

The  result  is  that  both  the  decrees  of  the  Circuit  Court  in  this 
case  must  be  reversed,  and  the  case  remanded  for  further  proceed- 
ings in  conformity  with  this  opinion.^^ 

21  The  rules  determining  the  riglits  and  duties  of  foreign  guardians  with 
respect  to  the  property  of  their  wards  do  not  differ  materially  from  those 
applicable  to  foreign  administrators.  See  S9  Am.  St.  Rep.  271-275 ;  13  Am. 
&  Eng.  Enc.  Law,  9G8-973 ;   21  Cyc.  20.5-272 ;    Minor,  Conflict  of  Laws,  §  IIG. 

"With  respect  to  the  rights  of  guardians,  foreign  and  domestic,  to  the  cus- 


Ch.    5)  FOREIGN  ADMINISTRATIONS.  721 

tody  of  the  ward,  see  89  Am.  St.  Rep.  274^278;  13  Am,  &  Eng.  Enc.  Law, 
9G7-968 ;   21  Cyc.  264 ;   Minor,  Conflict  of  Laws,  §  115. 

With  respect  to  jurisdiction  to  appoint  guardians,  see  21  Cyc.  23-26 ;  7  Col. 
Law  Rev.  348-350. 

Continental  Law. — France  and  Italy. — Jurisdiction  to  appoint  guardians  is 
on  principle  deemed  to  belong  exclusively  to  the  courts  of  the  country  of  which 
the  ward,  lunatic,  or  spendthrift  is  a  subject.  App.  Paris,  Dec.  12,  1803  (S. 
1804,  2,  20).  A  temporary  guardian,  however,  may  be  appointed  and  provi- 
sional measures  may  be  taken  until  the  courts  of  his  country  acj.  France. — 
App.  Nancy,  April  25,  18S5  (D.  1886,  2,  131) ;  Cass.  Nov.  10,  1896  (S.  1900,  1, 
516).  Itah/.—Cass.  Turin,  June  13,  1874  (1  Clunet,  330).  But  see  App.  Milan, 
July  5,  1901  (Monitore  1901,  p.  688).  Jurisdiction  will  be  assumed,  also,  if  the 
party  in  question  has  no  known  domicile  in  the  country  of  which  he  is  a 
subject,  so  that  a  refusal  to  take  jurisdiction  would  be  tantamount  to  a  denial 
of  justice.  Trib.  Civ.  Seine,  April  6,  1894  (21  Clunet,  531).  But  not  if  such 
guardianship  is  unknown  to  the  national  law.  App.  Paris,  July  31,  1895  (23 
Clunet,  147). 

Subject  to  the  rules  concerning  public  order,  a  foreign  guardian  can  exercise 
all  the  rights  vested  in  him  under  the  law  of  the  state  in  which  he  was  appoint- 
ed. France,  App.  Paris,  June  27,  1888  (17  Clunet,  946) ;  App.  Orleans,  Feb. 
9,  1900  (S.  1902,  2.  141).  Itahj,  Article  6,  Prel.  Disp.  Civ.  Code;  App.  Genoa, 
Dec.  31,  1889  (Temi  Genovese  1889,  p.  85) ;  App.'  Casale,  April  15,  1902 
(Foro  It.  1902,  1.  912).  This  is  true,  even  with  respect  to. realty,  App.  Pau, 
July  9,  1907  (35  Clunet,  183). 

Ordinarily  no  exequatur  of  the  decree  is  necessary  to  entitle  him  to  the 
enjoyment  of  such  rights,  unless,  of  course,  acts  of  execution  are  in  question. 
France,  App.  Nancy.  April  25,  1885  (D.  1886,  2,  131).  Italy,  App.  Orleans. 
Feb.  9,  1900  (S,  1900,  2,  14);    article  944,  Code  Civ.  Proc. 

So  whether  the  ward  has  a  lien  upon  the  property  of  his  guardian  as  a 
protection  against  mismanagement  depends  upon  his  national  law.  App.  Bor- 
deaux, July  23.  1897  (S.  1900,  2,  89),  and  note  by  E.  Audinet.  As  a  "strictly  civil 
right,"  however,  it  will,  in  the  absence  of  treaty  or  an  authorized  domicile, 
not  exist  in  favor  of  a  foreisuer  with  respect  to  property  in  France.  See  Cass. 
May  20,  1862  (S.  1862,  1,  673). 

Germany. — A  foreigner  of  age  may  be  placed  under  guardianship  in  Ger- 
many according  to  German  law,  if  he  is  domiciled  in  the  country,  or  if,  pos- 
sessing no  domicile  in  any  country,  he  resides  in  Germany.  Article  8,  Law 
Intr.  Civ.  Code.  A  guardian  may  be  appointed  in  Germany  for  a  foreign 
minor,  if  the  state  of  which  he  is  a  subject  fails  to  provide  one  for  him.  The 
need  of  a  guardian,  however,  is  to  be  determined  in  this  case  in  accordance 
with  his  national  law.  Article  23.  Law  Intr.  Civ.  Code ;  K.  G.  June  23.  1902 
(12  Niemeyer.  468)  ;  K.  G.  Feb.  23,  1903  (13  Niemeyer,  420).  O.  L.  G.  Jena, 
May  8,  1907  (18  Niemeyer,  180). 

The  above  rules  are  subject  to  the  provisions  of  the  Convention  of  the 
Hague  of  June  12,  1902.  See  Appendix  A,  III.  In  regard  to  guardianship 
for  persons  of  age,  see.  also.  Draft  of  Convention,  signed  at  the  Hague  July 
17,  1905  (Appendix  B,  III). 

LoR.CoNF.L. — 46 


< 


722  PARTICULAR  SUBJECTS.  (Part  2 

SECTION  3.— RECEIVERS  AND  TRUSTEES  IN  BANK- 
RUPTCY. 


X 


GREAT  WESTERN  MINING  &  MFG.  CO.  v.  HARRIS. 

(Supreme  Court  of  the  United  States,  1905.     198  U.  S.  5G1,  25  Sup.  Gt.  770, 

49  L.  Ed.  1163.) 


£** 


X    >\  >A        •fiif^'^       This  case  was  begun  by  a  bill  in  equity,  filed  in  the  Circuit  Court 
.      J*^*^     1/  °^  t^^^  United  States  for  the  District  of  Vermont  against  B.  D.  Harris, 

Xr      .  ^0^  3-  citizen  of  Vermont,  by  L.  C.  Black,  receiver  of  the  Great  Western 

^•^         .  Mining  &  Manufacturing  Company,   a  corporation   organized  under 

the  laws  of  Kentucky.  A  decree  was  rendered  in  favor  of  the  receiv- 
er, which  was  reversed  by  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit.    Plaintiff  sued  out  a  writ  of  certiorari. ^^ 

Dx\Y,  J.  The  theory  of  the  complainant's  case  seems  to  be  that  the 
transfers  of  the  stock  of  the  defendant  and  other  directors  and  stock- 
holders, paid  for  out  of  the  proceeds  of  the  bonds,  in  view  of  the  alle- 
gations of  the  bill  as  to  the  condition  of  the  company,  and  the  pur- 
poses in  view  by  the  defendant  and  associates,  amounted  to  a  breach 
of  duty  upon  the  part  of  the  defendant  and  other  directors,  and  a  con- 
version to  their  own  use  of  the  property  of  the  company,  for  which  they 
should  be  held  to  account  in  an  action  brought  by  the  company,  through 
its  receiver,  under  the  order  of  the  circuit  court  of  Kentucky.  The 
particulars  of  the  suit  in  which  the  receiver  was  appointed  are  not  very 
fully  set  forth,  but  enough  appears  to  show  that  he  was  appointed  in  a 
suit  to  adjudicate  and  enforce  liens,  and  subject  the  property  to  the 
payment  of  the  claims  of  creditors.  In  the  brief  of  the  learned  coun- 
sel for  complainant,  it  is  styled  a  "general  creditors'  and  foreclosure 
suit,"  It  does  not  appear  that,  by  order  of  the  court  or  otherwise, 
there  has  been  any  conveyance  of  the  property  and  assets  of  the  com- 
pany to  the  receiver,  nor  has  the  corporation  been  dissolved,  and  the 
receiver  made  its  successor,  entitled  to  its  property  and  assets.  The 
minute  books  of  the  company,  in  evidence  do  not  show  any  authority 
by  the  corporation  for  the  filing  of  this  bill  in  the  name  of  the  Great 
Western  Mining  &  Manufacturing  Company  or  otherwise,  although 
meetings  were  held  after  the  appointment  of  the  receiver.  Nor  is  our 
attention  called  to  any  statute  vesting  the  title  of  the  corporation  in 
the  receiver.  So  far,  then,  as  the  receiver  is  concerned,  his  right  to 
prosecute  the  action  must  depend  upon  his  powers  as  such  officer  of 
the  court  and  the  order  of  the  court,  set  forth  in  the  statement  of  facts, 
authorizing  him  to  bring  suit  against  the  stockholders,  and  directors 
for  the  purpose  of  realizing  the  assets,  either  in  his  own  name  or  that 

22  This  statement  of  facts  has  been  substituted  for  tliat  of  the  original  re- 
port. 


Ch.  5)  FOREIGN   ADMINISTRATIONS,  723 

of  the  corporation,  as  may  be  proper.  This  condition  of  the  record 
brings  up  for  consideration  at  the  threshold  of  this  case  the  question 
of  the  extent  of  the  power  of  the  receiver  to  maintain  this  action  un- 
der the  order  of  the  court,  either  in  his  own  name  or  that  of  the  com- 
pany. As  to  the  power  of  the  court  to  authorize  the  receiver  to  sue, 
we  think  the  case  is  ruled  by  Booth  v.  Clark,  17  How.  322,  338,  15 
L.  Ed.  170,  in  which  case  the  authority  of  the  court  to  authorize  a 
receiver  appointed  in  one  jurisdiction  to  sue  in  a  foreign  jurisdiction 
was  the  subject  of  very  full  consideration.  In  that  case  it  was  held 
that  a  receiver  is  an  officer  of  the  court  which  appoints  him,  and, 
in  the  absence  of  some  conveyance  or  statute  vesting  the  property 
of  the  debtor  in  him.,  he  cannot  sue  in  courts  of  a  foreign  jurisdic- 
tion upon  the  order  of  the  court  which  appointed  him,  to  recover 
the  property  of  the  debtor.  While  that  case  was  decided  in  1854, 
its  authority  has  been  frequently  recognized  in  this  court,  and  as 
late  as  Hale  v.  Allinson,  188  U.  S.  56,  23  Sup.  Ct.  244,  47  L.  Ed.  380, 
it  was  said  by  Mr.  Justice  Peckham,  who  delivered  the  opinion  of 
the  court: 

"We  do  not  think  anything  has  been  said  or  decided  in  this  court 
which  destroys  or  limits  the  controlling  authority  of  that  case."" 

In  that  case  the  following  language,  as  to  a  receiver's  powers, 
from  Booth  v.  Clark,  17  How.  338,  15  L.  Ed.  171,  is  quoted  with  ap- 
proval : 

"He  has  no  extraterritorial  power  of  official  action ;  none  which 
the  court  appointing  him  can  confer,  with  authority  to  enable  him 
to  go  into  a  foreign  jurisdiction  to  take  possession  of  the  debtor's 
property;  none  which  can  give  him,  upon  the  principle  of  comity, 
a  privilege  to  sue  in  a  foreign  court  or  another  jurisdiction,  as  the 
judgment  creditor  himself  might  have  done,  where  his  debtor  may 
be  amenable  to  the  tribunal  which  the  creditor  may  seek." 

Mr.  Justice  Wayne,  who  delivered  the  opinion  of  the  court  in 
Booth  v.  Clark,  stated,  among  others,  the  following  reasons  for  re- 
fusing to  recognize  the  powers  of  a  receiver  in  foreign  jurisdictions : 

"We  think  that  a  receiver  could  not  be  admitted  to  the  comity 
extended  to  judgment  creditors  without  an  entire  departure  from 
chancery  proceedings  as  to  the  manner  of  his  appointment,  the 
securities  which  are  taken  from  him  for  the  performance  of  his  du- 
ties, and  the  direction  which  the  court  has  over  him  in  the  collec- 
tion of  the  estate  of  the  debtor,  and  the  application  and  distribution 
of  them.  If  he  seeks  to  be  recognized  in  another  jurisdiction,  it  is 
to  take  the  fund  there  out  of  it,  without  such  court  having  any  con- 
trol of  his  subsequent  action  in  respect  to  it,  and  without  his  having 
even  official  power  to  give  security  to  the  court,  the  aid  of  wdiich  he 
seeks,  for  his  faithful  conduct  and  official  accountability.  All  that 
could  be  done  upon  such  an  application  from  a  receiver,  according 
to  chancery  practice,  would  be  to  transfer  him  from  the  locality  of 
his  appointment  to  that  where  he  asks  to  be  recognized,  for  the 


724  PARTICULAR  SUBJECTS.  (Part  2 

execution  of  his  trust  in  the  last,  under  the  coercive  ability  of  that 
court;  and  that  it  would  be  difficult  to  do,  where  it  may  be  asked 
to  be  done,  without  the  court  exercising  its  province  to  determine 
whether  the  suitor,  or  another  person  within  its  jurisdiction,  was 
the  proper  person  to  act  as  receiver." 

It  will  thus  be  seen  that  the  decision  in  Booth  v.  Clark  rests  upon 
the  principle  that  the  receiver's  right  to  sue  in  a  foreign  jurisdic- 
tion is  not  recognized  upon  principles  of  comity,  and  the  court  of 
his  appointment  can  clothe  him  with  no  power  to  exercise  his  offi- 
cial duties  beyond  its  jurisdiction.  The  ground  of  this  conclusion 
is  that  every  jurisdiction,  in  which  it  is  sought,  by  means  of  a  re- 
ceiver, to  subject  property  to  the  control  of  the  court,  has  the  right 
and  power  to  determine  for  itself  who  the  receiver  shall  be,  and  to 
make  such  distribution  of  the  funds  realized  within  its  own  juris- 
diction as  will  protect  the  rights  of  local  parties  interested  therein, 
and  not  permit  a  foreign  court  to  prejudice  the  rights  of  local  cred- 
itors by  removing  assets  from  the  local  jurisdiction  without  an  or- 
der of  the  court,  or  its  approval  as  to  the  officer  who  shall  act  in  the 
holding  and  distribution  of  the  property  recovered.  In  Ouincy  M. 
&  P.  R.  Co.  V.  Humphreys,  145  U.  S.  82,  12  Sup.  Ct.  787,  36  L. 
Ed.  632,  the  powers  of  a  receiver  were  under  consideration,  and 
the  following  language  was  quoted  with  approval  (145  U.  S.  98,  12 
Sup.  Ct.  792,  36  L.  Ed.  637)  :  "The  ordinary  chancery  receiver, 
such  as  we  have  in  this  case,  is  clothed  with  no  estate  in  the  prop- 
erty, but  is  a  mere  custodian  of  it  for  the  court,  and  by  special  au- 
thority may  become  an  officer  of  the  court  to  effect  a  sale  of  the 
property,  if  that  be  deemed  necessary  for  the  benefit  of  the  par- 
ties concerned."  There  are  exceptional  cases,  such  as  Relfe  v.  Run- 
die  (Life  Asso.  of  America  v.  Rundle)  103  U.  S.  223,  26  L.  Ed.  337,-=^ 
in  which  the  entire  property  of  the  insolvent  company  was  vested  in 
the  superintendent  of  insurance  of  the  state,  where  his  authority  did 
not  come  from  the  decree  of  the  court,  and  his  right  to  sue  was  main- 
tained. In  Hawkins  v.  Glenn,  131  U.  S.  319,  9  Sup.  Ct.  739,  33  L. 
Ed.  184,  it  appeared  that  Glenn  had  derived  title  by  assignment  and 
deed,  and  he  was  permitted  to  sue.  In  the  case  now  before  us  it  does 
not  appear  that  the  receiver  had  any  other  title  to  the  assets  and  prop- 
erty of  the  company  than  that  derived  from  his  official  relation  thereto 
as  receiver  under  the  order  of  the  court.  In  such  a  case  we  think  the 
doctrine  of  Booth  v.  Clark  is  fully  applicable.  It  is  doubtless  because 
of  the  doctrine  therein  declared  that  the  practice  has  become  general 
in  the  courts  of  the  United  States,  where  the  property  of  a  corpora- 
tion is  situated  in  more  than  one  jurisdiction,  to  appoint  ancillary  re- 
ceivers of  the  property  in  such  separate  jurisdictions.  It  is  true  that 
the  ancillary  receiverships  are  generally  conducted  in  harmony  with 
the  court  of  original  jurisdiction,  but  such  receivers  are  appointed  with 

2  3  Soe.  also.  Bernheimer  v.  Converse,  206  U.  S.  51G,  27  Sup.  Ct.  755,  51  L. 
Ed.  11G3  (1907). 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  7.25 

a  view  of  vesting-  control  of  property  rights  in  the  court  in  whose 
jurisdiction  they  are  located.  If  the  powers  of  a  chancery  receiver 
in  the  federal  courts  should  be  extended  so  as  to  authorize  suits  be- 
yond the  jurisdiction  of  the  court  appointing  him,  to  recover  property 
in  foreign  jurisdictions,  such  enlargement  of  authority  should  come 
from  legislative,  and  not  judicial,  action. 

Nor  do  we  think  the  jurisdiction  is  established  because  the  action 
is  authorized  to  be  instituted  by  the  receiver  in  the  name  of  the  cor- 
poration. Such  actions  subjecting  local  assets  to  a  foreign  jurisdic- 
tion and  to  a  foreign  receivership  would  come  within  the  reasoning 
of  Booth  V.  Clark.  If  a  recovery  be  had,  although  in  the  name  of  the 
corporation,  the  property  would  be  turned  over  to  the  receiver,  to  be  by 
him  administered  under  the  order  of  the  court  appointing  him. 

It  is  urged  that  jurisdiction  in  this  case  is  sustained  by  the  case 
of  Great  Western  Teleg.  Co.  v.  Purdy,  162  U.  S.  329,  16  Sup.  Ct. 
810,  40  L.  Ed.  986,  in  which  it  was  held  that  the  assets  and  affairs  of 
an  insolvent  corporation  being  in  the  hands  of  a  receiver,  the  court 
might  direct  the  calls  or  assessments  upon  delinquent  shareholders 
who  had  not  paid  for  their  shares,  thereby  using  the  authority  the 
directors  might  have  exercised  before  the  appointment  of  the  re- 
ceiver. In  that  case,  a  receiver  appointed  by  the  circuit  court  of  Cook 
county,  in  Illinois,  under  the  direction  of  that  court  brought  an  action 
in  the  name  of  the  Great  Western  Telegraph  Company,  an  Illinois 
corporation,  by  its  receiver,  against  Purdy,  a  citizen  of  Iowa,  to  re- 
cover a  sum  alleged  to  be  due  from  him  upon  an  assessment  upon  his 
stock  subscription,  and  it  was  held  that  the  Illinois  court  might  make 
the  assessment  and  calls  necessary  to  collect  the  stock  which  would  be 
binding  in  another  court.  The  jurisdiction  of  the  Iowa  court  was  not 
called  in  question  in  the  state  court  of  Iowa,  where  the  original  action 
was  brought,  nor  was  the  question  of  jurisdiction  raised  in  this  court, 
or  passed  upon  in  deciding  the  case.  While  not  detracting  from  the 
authority  of  that  case  as  to  the  matter  decided,  we  see  nothing  in  it 
to  indicate  that,  had  the  question  herein  presented  been  made,  it  would 
have  been  decided  otherwise  than  herein  indicated. 

There  are  numerous  and  conflicting  decisions  in  the  state  courts 
as  to  the  rights  of  a  receiver  to  sue  in  a  foreign  jurisdiction  upon  prin- 
ciples of  comity,  which  it  is  not  necessary  to  review  here.  In  this  court, 
since  the  case  of  Booth  v.  Clark,  17  How.  338,  15  L.  Ed.  170,  we  deem 
the  practice  to  be  settled,  and  to  limit  a  receiver,  who  derives  his  au- 
thority from  his  appointment  as  such,  to  actions,  either  in  his  own 
name  or  that  of  an  insolvent  corporation,  such  as  may  be  authorized 
within  the  jurisdiction  wherein  he  was  appointed. 

We  think  the  Circuit  Court  of  Appeals  was  right  in  holding  that 
the  Circuit  Court  had  no  jurisdiction  of  this  action. 

This  view  of  the  case  renders  it  unnecessary  to  consider  the  other 
questions  made  in  the  record. 

Decree  affirmed. 

Mr.  Justice  Brewer  concurs  in  the  decree. 


UU> 


■,4^ 


720  -.^       «  PARTICULAR  SUBJECTS.  (Part  2 


HURD  V.  CITY  OF  ELIZABETH. 

(Supreme  Court  of  New  Jersey,  1879.     41  N.  J.  Law,  1.) 


The  plaintiff  brought  this  suit  in  his  character  of  receiver  of  the 
Third  Avenue  Savings  Bank.  The  allegations  touching  his  right  to  sue 
were  the  following:  "For  that  the  said  S.  H.  Hurd  heretofore,  to 
wit,  on  the  thirtieth  day  of  November,  eighteen  hundred  and  seventy- 
five,  at  the  city  of  Kingston,  in  the  state  of  New  York,  to  wit,  at 
Elizabeth,  in  said  county  of  Union,  was  duly  appointed  receiver  of  the 
Third  Avenue  Savings  Bank,  by  the  Supreme  Court  of  the  state  of 
New  York,  in  pursuance  of  the  laws  of  said  state  of  New  York,  and 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  duly  qualified 
as  such  receiver,  and  thereupon  became  empowered  to  exercise  and 
perform  all  the  powers  and  duties  imposed  upon  him  as  receiver  as 
aforesaid,  by  virtue  of  the  laws  of  the  state  of  New  York  and  said 
appointment,  and  particularly  by  said  laws  and  his  said  appointment, 
became  seized  and  possessed  of  the  personal  property  and  choses  in 
action  of  the  said  the  Third  Avenue  Savings  Bank,  and  entitled  to  sue 
for,  collect  and  receive  all  moneys  then  due  to  the  said  the  Third  Ave- 
nue Savings  Bank,  and  particularly  the  several  sums  hereinafter  men- 
tioned." 

The  declaration  then  showed,  in  the  form  of  common  counts,  sundry 
moneys  due,  antecedently  to  the  receivership,  to  the  savings  bank,  and 
concluded  in  the  usual  style.    The  defendant  demurred. 

BkasIvKY,  C.  J.^*  The  plaintiff's  right  to  stand  as  the  actor  in  this 
suit  is  derived  wholly  from  the  receivership  that  was  conferred  upon 
him  by  the  Supreme  Court  of  the  state  of  New  York;  and  on  the 
part  of  the  defendant,  such  right  is  contested  on  the  ground  that  it 
is  contrary  to  established  rules  for  the  courts  here  to  lend  their  as- 
sistance in  carrying  into  effect  an  office  created  in  the  course  of  a  pro- 
ceeding before  a  foreign  tribunal.  To  countenance  this  contention 
various  authorities  are  cited,  and  notably  among  them  that  of  Booth  v. 
Clark,  17  How.  322,  15  L.  Ed.  164.  But  that  case  belongs  to  a  train 
of  decisions  which  have  been  undoubtedly  rightly  decided,  but  which 
are  not  to  be  regarded  as  ruling  the  precise  point  now  in  issue.  The 
decisions  thus  referred  to  will  be  found  in  High  on  Receivers,  §  239, 
and  they  are  all  cases  involving  a  controversy  between  the  receiver 
and  the  creditors  of  the  person  whose  property  has  been  placed  un- 
der the  control  of  such  receiver.  In  such  a  posture  of  things  it  is 
manifest  that  different  considerations  should  have  force  from  those 
that  are  to  control  when  the  litigation  does  not  involve  the  rig-hts  of 
creditors  in  opposition  to  the  claims  of  the  receiver.  That  the  officer 
of  a  foreign  court  should  not  be  permitted,  as  against  the  claims  of 
creditors  resident  here,  to  remove  from  this  state  the  assets  of  the 


24 A  part  of  the  opinion  relating  to  a  point  of  pleading  has  been  omitted. 


Ch.  5)  FOREIGN   ADMINISTRATIONS.  727 

debtor,  is  a  proposition  that  appears  to  be  asserted  by  all  the  deci- 
sions; but  that,  similarly,  he  should  not  be  permitted  to  remove  such 
assets  when  creditors  are  not  so  interested,  is  quite  a  different  af- 
fair, and  it  may,  perhaps,  be  safely  said  that  this  latter  doctrine  has 
no  direct  authority  in  its  favor.  There  are  certainly  dicta  that  go  even 
to  that  extent,  so  that  text-writers  seem  to  have  felt  themselves  war- 
ranted in  declaring  that  the  powers  of  an  officer  of  this  kind  are 
strictly  circumscribed  by  the  jurisdictional  limits  of  the  tribunal  from 
which  he  derives  his  existence,  and  that  he  wall  not  be  recognized  as 
a  suitor  outside  of  such  limits.  But  I  think  the  more  correct  defini- 
tion of  the  legal  rule  would  be  that  a  receiver  cannot  sue,  or  otherwise 
exercise  his  functions,  in  a  foreign  jurisdiction  whenever  such  acts, 
if  sanctioned,  would  interfere  with  the  policy  established  by  law  in 
such  foreign  jurisdiction.  There  seems  to  be  no  reason  why  this  should 
not  be  the  accepted  principle.  When  there  are  no  persons  interested 
but  the  litigants  in  a  foreign  jurisdiction,  and  it  becomes  expedient, 
in  the  progress  of  such  suit,  that  the  property  of  one  of  them,  wher- 
ever it  may  be  situated,  should  be  brought  in  and  subjected  to  such 
proceeding,  I  can  think  of  no  objection  against  allowing  such  a- power 
to  be  exercised.  It  could  not  be  exercised  in  a  foreign  jurisdiction  to 
the  disadvantage  of  creditors  resident  there,  because  it  is  the  policy 
of  every  government  to  retain  in  its  own  hands  the  property  of  a  debtor 
until  all  domestic  claims  against  it  have  been  satisfied.  But  beyond 
this  precaution,  why  should  any  restraint  be  put  upon  the  foreign 
procedure?  The  question  thus  raised  has  nothing  to  do  with  that 
other  inquiry  that  is  frequently  discussed  in  the  books,  whether  a  re- 
ceiver at  common  law  is  in  point  of  fact  clothed  with  the  power  to 
sue  in  a  foreign  jurisdiction;  that  is  a  subject  standing  by  itself,  for 
the  present  argument  relates  to  a  case  in  which  the  officer  is  authorized, 
so  far  as  such  power  can  be  given  by  the  tribunal  appointing  him,  to 
gather  in  the  assets,  both  at  home  and  abroad.  Conceding  that  the 
officer  is  invested  with  this  fullness  of  authority,  it  would  appear  to 
be  in  harmony  with  those  legal  principles  by  which  the  intercourse  of 
foreign  states  is  regulated  for  every  government,  when  its  tribunals 
are  appealed  to,  to  render  every  assistance  in  its  power  in  furtherance 
of  the  execution  of  such  authority,  except  in  those  cases  when,  by 
so  doing,  its  own  policy  would  be  displaced  or  the  rights  of  its  own 
citizens  invaded  or  impaired.  After  completely  protecting  its  own 
citizens  and  laws,  the  dictates  of  international  comity  would  seem  to 
require  that  the  officer  of  the  foreign  tribunal  should  be  acknowledged 
and  aided.  The  appointment  of  a  receiver,  with  full  powers  to  col- 
lect the  property  of  a  litigant,  wherever  the  same  might  be  found, 
should  be  deemed  to  operate  as  an  assignment  of  such  property  to  be 
enforced  everywhere,  subject  to  the  exception  just  defined.  Such  a 
rule,  is,  I  think,  both  practicable  and  just.  If  A.,  being  the  only 
creditor  of  B.,  should  sue  him  in  a  court  of  this  state,  and  the  exigen- 
cies of  justice  should  require  that  the  property  of  B.,  wherever  tbt-- 


728  PARTICULAR  SUBJECTS.  (Part  2 

same  might  be  situated,  should  be  put  under  the  control  of  the  forum 
in  which  the  proceedings  were  pending,  and  such  receiver  should  be 
appointed  and  should  be  legally  clothed  with  the  requisite  authority 
to  sue  for,  and  take  possession  of  such  property,  I  can  find  nothing 
in  the  rules  or  of  good  policy  that  should  permit  the  debtors  of  B. 
to  set  up  that  such  judgment  has  no  extraterritorial  force.  To  sanc- 
tion such  a  plea  would  be  to  frustrate,  as  far  as  possible  the  foreign 
procedure,  simply  for  the  purpose  of  doing  so,  the  single  result  being 
that  a  court  would  be  baffied,  and  perhaps  prevented  from  doing  jus- 
tice. Such  ought  not  to  be  the  legal  attitude  of  governments  towards 
each  other.  To  the  extent  to  which  this  subject  has  been  involved, 
it  has,  I  think,  been  properly  disposed  of  in  the  adjudications  already 
made  in  this  state.  Thus  in  Varnum  v.  Camp,  13  N.  J.  Law,  326,  25 
Am.  Dec.  476,  it  was  decided  that  an  instrument  efficient  at  the  domi- 
cil  of  the  maker  to  transfer  his  property  could  not  dispose,  in  a  man- 
ner inconsistent  with  the  policy  of  our  laws,  of  his  movables  situate 
here.  In  this  case  the  duty  of  comity  was  admitted  but  the  decision 
was  put  upon  the  ground  that  this  state  was  not  required,  by  force 
of  such  duty,  to  abandon  an  established  policy  of  its  own  in  favor 
of  a  different  policy  prevalent  in  another  jurisdiction.  Moore  v.  Bon- 
nell,  31  N.  J.  Law,  90,  was  decided  on  a  similar  principle,  and  it  has 
this  additional  feature,  that  while  it  in  a  general  way  rejects  the  con- 
trol of  the  foreign  policy,  it  does  this  only  to  the  extent  rendered 
necessary  for  the  purpose  of  self-protection,  for,  beyond  this  limit,  it 
gives  effect  to  and  enforces  the  foreign  law.  And  the  same  disposi- 
tion to  co-operate,  as  far  as  practicable,  in  sustaining  an  alien  policy 
is  exhibited  in  the  case  of  Normand's  Administrator  v.  Grognard,  17 
N.  J.  Eq.  425.  The  foregoing  view  will  be  found  to  be  in  accord  with 
the  following  cases:  Hoyt  v.  Thompson,  5  N.  Y.  320;  Runk  v.  St. 
John,  29  Barb.  (N.  Y.)  585;  Taylor  v.  Columbian  Insurance  Co.,  14 
Allen  (Mass.)  353. 

In  view  of  these  considerations  and  authorities  my  conclusion  is, 
that  the  legal  effect  of  the  appointment  of  a  receiver  in  a  foreign  juris- 
diction in  transferring  to  him  the  right  to  collect  the  property  passing 
under  his  control  by  virtue  of  such  office,  will  be  so  far  recognized 
by  the  courts  of  this  state  as  to  enable  such  officer  to  sustain  a  suit 
for  the  recovery  of  such  property.     *     *     *  ^^ 

25 Accord:  Bank  v.  McLeod,  38  Ohio  St.  174  (1882);  Small  v.  Smith,  14  S. 
D.  621,  86  N.  W.  649,  86  Am.  St.  Rep.  80S  (1901). 


^^    U    <^^y^    jb(^     ^^   CM/t-vMyirA^ 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  729 

CHICAGO,  M.  &  ST.  P.  RY.  CO.  v.  KEOKUK  N.  L.  PACKET  CO. 

(Supreme  Court  of  Illiuois,  1SS4.     108  111.  317,  43  Am.  Rep.  557.) 

This  was  an  attachment  suit,  brought  by  the  Chicago,  Mihvaukee 
&  St.  Paul  Railway  Company,  against  the  Keokuk  Northern  Line 
Packet  Company,  in  the  circuit  court  of  Adams  county,  in  this  state. 
The  writ  of  attachment  was,  on  the  21st  day  of  April,  1881,  levied 
upon  the  barge  G.  W.  Duncan,  lying  at  Quincy,  in  said  county,  as  the 
property  of  the  defendant.  Samuel  C.  Clubb,  under  the  provision 
of  section  29  of  our  attachment  act,  "that  any  person  other  than  the  de- 
fendant claiming  the  property  attached  may  interplead,"  etc.,  inter- 
pleaded in  the  case,  claiming  the  property  so  attached,  under  an  ap- 
pointment as  receiver  of  the  property  and  effects  of  said  packet  com- 
pany, by  the  circuit  court  of  St.  Louis,  in  the  state  of  Missouri,  in 
a  certain  cause  in  said  court  wherein  said  packet  company  was  de- 
fendant. There  was  judgment  in  favor  of  the  interpleader,  Clubb, 
which,  on  appeal,  was  affirmed  by  the  Appellate  Court  for  the  Third 
District,  and  the  railway  company  appealed  to  this  court. 

The  plaintiff  in  the  attachment  suit  had  first  filed  a  replication  to 
the  pleas  of  the  interpleader,  traversing  the  same,  but  afterward,  on 
its  motion  granted-  by  the  court,  it  withdrew  the  replication,  as  having 
been  filed  by  mistake,  and  then  moved  the  court  to  file  its  plea  in 
abatement,  which  had  been  intended  to  be  filed  instead  of  the  replica- 
tion, den3dng  the  right  to  interplead  as  receiver  under  the  appoint- 
ment of  a  foreign  court,  which  motion  the  court  overruled,  where- 
upon said  plaintiff  company  filed  the  plea  in  abatement,  which  plea 
the  court,  on  motion  of  said  Clubb,  ordered  to  be  stricken  from  the  files. 
The  plaintiff  company  then  refiled  its  said  replication,  upon  which 
issue  was  joined  and  the  trial  had.  The  interpleader's  first  plea  al- 
leges the  barge  was  his  own  property  at  the  time  of  the  attachment 
of  it;  the  second,  that  it  was  his  property  as  receiver;  the  third,  that 
at  such  time  it  was  in  his  possession  as  receiver. 

The  facts  of  the  case  shown  by  the  evidence  are,  that  at  the  October 
term,  1880,  of  the  circuit  court  of  the  city  of  St.  Louis,  in  the  state 
of  Missouri,  Samuel  C.  Clubb  was  duly  appointed  receiver  of  the 
Keokuk  Northern  Line  Packet  Company,  an  insolvent  corporation  of 
that  state,  with  power  and  authority  to  take  possession  of  all  the  busi- 
ness and  property  of  the  corporation,  and  to  manage  the  affairs  thereof, 
under  the  orders  of  the  court,  the  receiver  giving  bond  in  the  sum  of 
$200,000  for  the  faithful  discharge  of  his  duties.  At  the  time  of  such 
appointment  the  barge  G.  W.  Duncan,  in  question,  was  lying  at  the 
lauding  at  St.  Louis,  within  the  state  of  Missouri,  and  within  the  ju- 
.risdiction  of  said  court.  The  receiver  immediately  took  possession 
of  the  barge,  and  afterward,  on  the  6th  day  of  November,  1880,  he 
chartered  the  barge  to  the  steamer  E.  W.  Cole,  for  a  trip  up  the  Mis- 
sissippi river  and  return.     The  barge  was  taken,  under  the  charter. 


/ 


730  PARTICULAR   SUBJECTS.  (Pait    2 

up  the  river  as  far  as  Quincy,  Illinois,  where  it  was  detained  by  the 
ice,  and  remained  until  the  levy  of  the  writ  of  attachment  in  this  case 
upon  it  on  the  21st  day  of  April,  1881.  At  the  request  of  the  captain 
of  the  steamer  E.  W.  Cole,  the  receiver  released  him  from  the  charter, 
and  took  possession  of  the  barge  at  Quincy,  and  ever  since,  until  the 
levy  of  the  attachment,  retained  such  possession,  having  a  watchman 
over  and  guarding  the  barge  against  danger.  The  receiver  made  an 
effort  to  have  the  barge  removed  to  St,  Louis  as  soon  as  the  river  was 
clear  of  ice,  having  made  a  contract  with  a  steamboat  line  for  the  pur- 
pose, but  did  not  succeed  in  having  the  removal  made  before  the  at- 
tachment. The  court  which  appointed  the  receiver,  at  its  April  term, 
1881,  made  an  order  authorizing  the  receiver  to  intervene  in  the  at- 
tachment suit,  and  take  the  necessary  steps  to  secure  possession  of  the 
barge. 

Sheldon,  C.  J.  We  will  consider  the  case  as  properly  presenting 
by  the  pleadings  the  question  of  the  right  to  interplead  in  the  suit  in 
the  capacity  of  receiver. 

The  general  doctrine  that  the  powers  of  a  receiver  are  coextensive 
only  with  the  jurisdiction  of  the  court  making  the  appointment,  and 
particularly  that  a  foreign  receiver  should  not  be  permitted,  as  against 
the  claims  of  creditors  resident  in  another  state,  to  remove  from  such 
state  the  assets  of  the  debtor,  it  being  the  policy  of  every  government 
to  retain  in  its  own  hands  the  property  of  a  debtor  until  all  domestic 
claims  against  it  have  been  satisfied,  we  fully  concede ;  and  were  this 
the  case  of  property  situate  in  this  state,  never  having  been  within  the 
jurisdiction  of  the  court  that  appointed  the  receiver,  and  never  having 
been  in  the  possession  of  the  receiver,  it  would  be  covered  by  the  above 
principles,  which  would  be  decisive  against  the  claim  of  the  appellee. 
But  the  facts  that  the  property  at  the  time  of  the  appointment  of  the 
receiver  was  within  the  jurisdiction  of  the  court  making  the  appoint- 
ment, and  was  there  taken  into  the  actual  possession  of  the  receiver, 
and  continued  in  his  possession  until  it  was  attached,  take  the  case, 
as  we  conceive,  out  of  the  range  of  the  foregoing  principles.  We  are 
of  opinion  that  by  the  receiver's  taking  possession  of  the  barge  in 
question  within  the  jurisdiction  of  the  court  that  appointed  him,  he 
became  vested  with  a  special  property  in  the  barge,  like  that  which  a 
sheriff  acquires  by  the  seizure  of  goods  in  execution,  and  that  he  was 
entitled  to  protect  this  special  property  while  it  continued,  by  action, 
in  like  manner  as  if  he  had  been  the  absolute  owner.  Having  taken 
the  property  in  his  possession,  he  was  responsible  for  it  to  the  court 
that  appointed  him,  and  had  given  a  bond  in  a  large  sum  to  cover  his 
responsibility  as  receiver,  and  to  meet  such  Hability  he  might  maintain 
any  appropriate  proceeding  to  regain  possession  of  the  barge  which 
had  been  taken  from  him.  Boyle  v.  Townes,  9  Leigh  (Va.)  158 ;  Sing- 
erly  v.  Fox,  75  Pa.  114.  It  is  well  settled  that  a  sheriff  does,  by  the 
seizure  of  goods  in  execution,  acquire  a  special  property  in  them,  and 
that  he  may  maintain  trespass,  trover  or  replevin  for  them. 


Ch.  5)  FOREIGN   ADMINISTRATIONS.  731 

It  is  claimed  that  there  was  here  an  abandonment  of  the  barge  by- 
leasing  it  and  suffering  it  to  be  taken  out  of  the  state — that  the  purpose 
in  so  doing  was  an  unlawful  one,  and  a  gross  violation  of  official  duty. 
We  do  not  so  view  it.  The  receiver  was,  by  his  appointment,  author- 
ized to  manage  the  affairs  of  the  corporation  under  the  orders  of  the 
court.  The  business  of  the  corporation  was  running  boats  on  the 
Mississippi  river,  and  chartering  the  barge  for  a  trip  up  that  river  was 
but  continuing  the  employ  of  the  barge  in  the  business  of  the  corpo- 
ration, and  therefrom  making  an  increase  of  the  assets  to  be  distrib- 
uted among  the  creditors.  Brownell  v.  Manchester,  1  Pick.  (Mass.) 
233,  decides  that  a  sheriff"  in  the  state  of  Massachusetts,  who  had  at- 
tached property  in  that  state,  did  not  lose  his  special  property  by  re- 
moving the  attached  property  into  the  state  of  Rhode  Island  for  a 
lawful  purpose,  Dick  v.  Bailey  et  al.,  2  La.  Ann.  9T-i,  46  Am.  Dec. 
561,  holds  otherwise  in  respect  to  property  attached  in  Mississippi, 
and  sent  by  the  sheriff  into  Louisiana  for  an  illegal  purpose.  It  is 
laid  down  in  Drake  on  Attachment  (5th  Ed.)  §  292,  that  the  mere 
fact  of  removal  by  an  officer  of  attached  property  beyond  his  baili- 
wick into  a  foreign  jurisdiction,  without  regard  to  the  circumstances 
attending  it,  will  not  dissolve  the  attachment ;  that  if  the  purpose  was 
lawful,  and  the  possession  continued,  the  attachment  would  not  be 
dissolved;  but  if  the  purpose  was  unlawful,  though  the  pfficer's  pos- 
session remained,  or  if  lawful  and  he  lost  his  possession,  his  special 
property  in  the  goods  would  be  divested — citing  the  two  cases  above 
named.  We  do  not  consider  that  there  was  any  unlawful  purpose 
here  in  the  chartering  and  employing  of  the  barge,  as  was  done. 

It  is  insisted  the  possession  of  the  barge  was  lost.  There  was  cer- 
tainly evidence  tending  to  show  possession  by  the  receiver  up  to  the 
time  of  the  attachment,  and  in  support  of  the  judgment  of  the  Ap- 
pellate Court  we  must  presume  that  it  found  the  existence  of  all  the 
facts  necessary  to  sustain  the  judgment,  where  there  was  evidence 
tending  to  show  their  existence,  and  that  court's  finding  of  fact  is 
conclusive  upon  us.  By  taking  the  barge  into  his  possession  within 
the  jurisdiction  of  the  court  that  appointed  him,  a  special  property  in 
the  barge  became  vested  in  the  receiver,  and  it  is  the  established  rule 
that  where  a  legal  title  to  personal  property  has  once  passed  and  be- 
come vested  in  accordance  with  the  law  of  the  state  where  it  is  situated, 
the  validity  of  such  title  will  be  recognized  everywhere.  Caniwell  v. 
Sewell,  5  Hurl.  &  N.  728;  Clark  v.  Connecticut  Peat  Co.,  35  Conn. 
303 ;  Taylor  v.  Boardman,  25  Vt.  581 ;  Crapo  v.  Kelly,  16  Wall.  610, 
21  L.  Ed.  430;   Waters  v.  Barton,  1  Cold.  (Tenn.)  450. 

Under  this  rule  we  hold  that  where  a  receiver  has  once  obtained 
rightful  possession  of  personal  property  situated  within  the  jurisdic- 
tion of  his  appointment,  which  he  was  appointed  to  take  charge  of,  he 
will  not  be  deprived  of  its  possession,  though  he  take  it,  in  the  perform- 
ance of  his  duty,  into  a  foreign  jurisdiction;  that  while  there  it  can- 
not be  taken  from  his  possession  by  creditors  of 'the  insolvent  debtor 


732  PARTICULAR  SUBJECTS.  (Part  2 

who  reside  within  that  jurisdiction.  Where  a  receiver  of  an  insolvent 
manufacturing  corporation,  appointed  by  a  court  in  New  Jersey,  took 
possession  of  its  assets,  and  for  the  purpose  of  completing  a  bridge 
which  it  had  contracted  to  build  in  Connecticut,  purchased  iron  with 
the  funds  of  the  estate  and  sent  it  to  that  state,  it  was  decided  that  the 
iron  was  not  open  to  attachment  in  Connecticut  by  a  creditor  residing 
there.  Pond  v.  Cooke,  45  Conn.  126,  29  Am.  Rep.  668.  And  where 
C.  was  appointed,  by  a  court  in  Arkansas,  receiver  of  property  of  T., 
a  defendant  in  a  suit,  and  ordered  to  ship  it  to  ]\Iemphis  for  sale, 
and  to  hold  the  proceeds  subject  to  the  order  of  the  court,  and  did 
so  ship  it  to  Memphis,  where  it  was  attached  by  creditors  of  T.,  it  was 
held  that  C.  could  maintain  an  action  of  replevin  for  the  property 
in  Tennessee.  Cagill  v.  Wooldridge,  8  Baxt.  (Tenn.)  580,  35  Am. 
Rep.  716;  Killner  v.  Hobart,  58  How.  Pr.  (N.  Y.)  452,  decides  that 
receivers  appointed  in  another  state,  and  operating  a  railway  as  such, 
but  having  property  in  their  hands  as  receivers  in  New  York,  cannot 
there  be  sued — that  an  attachment  issued  m  such  suit  will  be  vacated. 

This  is  not  the  case  of  the  officer  of  a  foreign  court  seeking,  as 
against  the  claims  of  creditors  resident  here,  to  remove  from  this 
state  assets  of  the  debtor  situate  here  at  the  time  of  the  officer's  ap- 
pointment, and  ever  since,  and  of  which  he  had  had  no  previous  pos- 
session. It  is  to  such  a  case  as  that,  as  we  understand,  that  the  au- 
thorities cited  by  appellant's  counsel  apply,  and  not  to  a  case  like  the 
present,  where  the  property  was,  at  the  time  of  the  appointment  of  the 
foreign  receiver,  within  the  jurisdiction  of  the  appointing  court,  and 
there  taken  into  the  receiver's  possession,  and  subsequently  suffered 
by  him  to  be  brought  into  this  state  in  the  performance  of  his  duty, 
and  his  possession  here  wrongfully  invaded,  and  he  seeking  but  redress 
for  such  invasion. 

The  judgment  of  the  Appellate  Court  must  be  affirmed. 

Judgment  affirmed.^® 

26  Accord:  Pond  v.  Cooke,  45  Conn.  126,  29  Am.  Rep.  668  (1877);  Robert- 
son V.  Stead,  135  Mo.  135,  36  S.  W.  610,  33  L.  R.  A.  203,  58  Am.  St.  Rep.  509 
(1896)  ;  Woodlinll  v.  Farmers'  Trust  Co.,  11  N.  D.  157,  90  N.  W.  795,  95  Am. 
St.  Rep.  712  (1902).  Contra:  Humphreys  v.  Hopkins,  81  Cal.  551,  22  Pac. 
892,  6  L.  R.  A.  792,  15  Am.  St.  Rep.  76  (1889). 

So  whenever  a  receiver  sues  in  his  own  right,  and  not  in  a  representative 
capacity.    Wilkinson  v.  Culver  (C.  C.)  25  Fed.  639  (1885). 

In  the  absence  of  statute  a  receiver  can  be  sued  in  the  state  of  appointment 
only  with  the  permission  of  the  court  appointing  him.  People  v.  Brooks,  40 
Mich.  333,  29  Am.  Rep.  534  (1879). 

As  to  whether  or  not  he  may  be  sued  in  another  state  without  such  leave, 
and  as  to  the  effect  of  such  omission,  see  Barton  v.  Barbour,  104  U.  S.  126, 
26  L.  Ed.  672  (1881) ;  Phelan  v.  Ganebin,  5  Colo.  14  (1879)  ;  Pruyn  v.  Mc- 
Creary,  105  App.  Div.  302,  93  N.  Y.  Supp.  995  (1905),  affirmed  182  N.  Y.  568, 
75  N.  E.  1133  (1905). 

A  judgment  obtained  against  a  receiver  of  one  jurisdiction  is  not  binding 
upon  him  with  respect  to  assets  held  by  him  as  receiver  in  another  juri«lic- 
tion.  Reynolds  v.  Stockton,  140  U.  S.  254,  11  Sup.  Ct.  773,  35  L.  Ed.  404 
(1891). 

Between  courts  of  concurrent  jurisdiction  the  court  first  acquiring  jurisdic- 
tion over  the  res  has  exclusive  jurisdiction  for  the  purposes  of  the  litigation 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  733  -^   y' 

HUNTER  V.  POTTS.  ^]^ 

(Court  of  King's  Bench,  J791.     4  Term  R.  182.) 

Action  for  money  had  and  received.  Blanchard  &  "Lewis,  bank- 
rupts, were  indebted  to  defendant  on  a  contract  made  in  England. 
All  the  parties  were  residents  of  England.  After  the  issuing  of  the 
commission  of  bankruptcy  and  the  making  of  the  assignment  the 
defendant,  with  full  knowledge  thereof,  caused  the  effects  of  the 
bankrupt  found  in  Rhode  Island,  U.  S.  A.,  to  be  attached  and  col- 
lected the  sum  of  £496.  12s.  9d.  and  costs.  This  action  is  brought 
by  the  assignees  to  recover  this  sum.^'^ 

Lord  Kenyon,  C.  J.  In  the  argument  in  this  case,  many  quota- 
tions were  made  from  the  writers  on  the  civil  law,  which  it  is  not 
necessary  to  consider  in  determining  this  question.  Generally 
speaking,  it  must  be  admitted,  that  personal  property  must  be  gov- 
erned by  the  laws  of  that  country  where  the  owner  is  domiciled. 
Neither  do  we  mean  to  break  through  the  rule  that  the  courts  of  one 
country  ought  to  pay  a  proper  deference  to  the  decision  of  the  courts 
in  another  having  competent  jurisdiction,  where  the  facts  on  which 
the  decision  was  made  were  fairly  disclosed  to  such  court;  but  the 
general  question  here  is,  Whether  the  assignment  which  was  ex- 
ecuted by  the  commissioners  of  the  bankrupt,  was  sufficient  to  vest 
the  bankrupt's  property  in  the  plantations  abroad,  in  the  assignees 
under  the  commission? — because,  if  it  did  so  vest  at  the  time  of  the 
assignment,  it  is  immaterial  to  consider  in  this  case,  how  far  the 
relation  under  the  bankrupt  laws  should  take  effect  in  Rhode  Island, 
since  the  assignment  was  executed  anterior  to  the  time  when  the 
attachment  suit  was  there  commenced.  Therefore,  the  only  ques- 
tion here  is.  Whether  or  not  the  property  in  that  island  passed  by 
the  assignment  in  the  same  manner  as  if  the  owner  (the  bankrupt) 
had  assigned  it  by  his  voluntary  act?  And  that  it  does  so  pass  can- 
not be  doubted,  unless  there  were  some  positive  law  of  that  coun- 
try to  prevent  it.  Every  person  having  property  in  a  foreign  coun- 
try, may  dispose  of  it  in  this :  though,  indeed,  if  there  be  a  law  in 
that  country  directing  a  particular  mode  of  conveyance,  that  must 
be  adopted ;  but  in  this  case,  no  law  of  that  kind  is  stated ;  and  we 
cannot  conjecture  that  it  was  not  competent  to  the  bankrupt  him- 
self, prior  to  the  bankruptcy,  to  have  disposed  of  his  property  as  he 
pleased.     Now  the  bankrupt  statutes  have  expressly  enacted,  that 

before  it.  Shields  v.  Coleman,  157  U.  S.  168,  15  Sup.  Ct.  570,  39  L.  Ed.  GGO 
(1895).  So  where  possession  is  necessary  to  the  relief  asked.  Adams  v.  Mer- 
cantile Trust  Co.,  66  Fed.  617,  15  C.  C.  A.  1  (1895),  and  Judge  Woods,  in  Wil- 
mer  v.  Atlanta,  etc.,  R.  Co.,  2  Woods,  409,  Fed.  Cas.  No.  17,775  (1875).  To  the 
effect  that  actual  seizure  of  the  property  is  necessary,  see  Justice  Bradley,  in 
Wilmer  v.  Atlanta,  etc.,  R.  Co.,  2  Woods,  423,  Fed.  Cas.  No.  17,775  (1875). 

2  7  This  statement  of  facts  has  been  substituted  for  that  of  the  original  re- 
port. 


734  PARTICULAR  SUBJECTS.  (Part  2 

the  commissioners  may  assign  all  the  property  of  the  bankrupt  in 
the  most  extensive  words;  and,  therefore,  on  the  general  reason  of 
the  thing,  if  there  be  no  positive  decision  to  the  contrary,  no  doubt 
could  be  entertained  but  that,  by  the  laws  of  this  country,  uncon- 
tradicted by  the  laws  of  any  other  country  where  personal  property 
may  happen  to  be,  the  commissioners  of  a  bankrupt  may  dispose  of 
the  personal  property  of  a  bankrupt  resident  here,  though  such 
property  be  in  a  foreign  country.  Then  let  us  consider  the  deci- 
sions which  have  been  made  on  this  subject.  The  case  of  Mcintosh 
V.  Ogilvie,  H.  21  Geo.  II,  in  Chancery:  "The  plaintiff  was  the  as- 
signee of  a  bankrupt,  the  defendant  a  creditor,  who  before  the  bank- 
ruptcy went  into  Scotland,  and  made  arrestments  on  debts  due  to 
the  bankrupt  from  persons  there.  Upon  an  affidavit  of  the  defend- 
ant's having  got  this  money  into  his  hands,  a  ne  exeat  was  granted ; 
and  a  motion  was  now  made  on  the  behalf  of  the  defendant  to  dis- 
charge it,  upon  a  supposition  that  he  had  a  right  to  the  goods  as 
creditor  by  his  arrestments.  The  Lord  Chancellor  asked,  whether 
he  had  sentence  before  the  bankruptcy;  and  being  answered  in  the 
negative,  he  said,  'Then  it  is  like  a  foreign  attachment,  by  which 
this  court  will  not  suffer  a  creditor  to  gain  priority,  if  no  sentence 
were  pronounced  before  the  bankruptcy.  I  cannot  grant  a  prohibi- 
tion to  the  Court  of  Session ;  but  I  will  certainly  make  an  order  on 
the  party  here  to  restrain  him  from  getting  a  priority,  and  evading 
the  laws  of  bankruptcy  here.  If  the  gentleman  were  not  going 
abroad,  I  would  do  nothing;  but  as  he  is,  I  will  not  discharge  the 
writ  without  his  giving  security  to  abide  the  event  of  the  cause.' 
N.  B.  The  Solicitor  General  said  there  had  been  cases  where  cred- 
itors had  got  a  priority;  and  after  coming  here,  have  been  obliged 
to  refund  in  a  court  of  law  in  an  action  for  money  had  and  received" 
agrees  with  our  opinion.  There  it  is  to  be  observed,  that  Lord  Hard- 
wicke,  on  his  being  told  that  the  defendant  in  that  case  had  not  ob- 
tained a  sentence  before  the  bankruptcy,  said,  "Then  it  is  like  a 
foreign  attachment,  by  which  this  court  will  not  suffer  a  creditor 
to  gain  priority,  if  no  sentence  were  pronounced  before  the  bank- 
ruptcy." In  another  part  he  intimated  a  strong  opinion  that  the 
property  in  Scotland  should  not  be  taken  by  one  creditor  to  the 
prejudice  of  the  rest  of  the  creditors  here;  and  at  the  close  of  that 
case  the  Solicitor  General  observed,  that  this  precise  question  had 
been  determined.  But  the  case  of  Beckford  v.  Turner  was  relied 
on,  when  this  case  was  first  argued,  as  a  determination  in  favor  of 
the  attachment  creditor;  but  certainly  no  question  of  that  kind  was 
stated  among  the  reasons  assigned  by  the  counsel,  nor  was  it  brought 
in  judgment  in  that  case;  the  single  question  there  was.  Whether 
or  not  the  proceedings  in  the  island  of  Jamaica  were  conformable 
to  the  mode  pointed  out  by  the  act  of  assembly  there?  and  if  it  had 
been  stated  in  the  reasons  signed  in  that  case,  this  question  could 
not  have  arisen  in  deciding  it.    There  was,  indeed,  a  dictum,  rather 


Ch.  5)  FOREIGN   ADMINISTRATIONS.  735 

than  a  decision,  in  Wilson's  Case,  that  the  assignment  by  the  com- 
missioners had  no  other  effect  than  a  voluntary  assignment.  I  be- 
lieve the  doubt  in  all  these  cases  has  arisen  from  not  attending  to 
the  meaning  of  the  word  "voluntary."  It  has  been  contended  that 
it  means  "without  a  valuable  consideration";  but  it  is  impossible  to 
consider  it  in  that  light;  for  in  the  case  of  a  bankruptcy  there  must 
be  a  consideration ;  it  means  the  bankrupt's  own  voluntary  act,  as 
contradistinguished  from  a  compulsory  act  by  law.  Therefore  on 
the  reason  of  the  thing,  even  without  any  authorities,  we  have  no 
difficulty  in  saying  that  the  title  of  the  plaintiffs  must  prevail.  For 
it  must  be  remembered,  that  during  the  progress  of  this  business 
all  these  parties  resided  in  England ;  that  the  defendant,  knowing 
of  the  commission  and  of  the  assignment,  in  order  to  gain  a  priority, 
transmitted  an  affidavit  to  Rhode  Island  to  obtain  an  attachment 
of  the  bankrupt's  property  there,  in  violation  of  the  rights  of  the 
rest  of  the  creditors,  which  were  then  vested;  but  such  an  attempt 
cannot  be  sanctioned  in  a  court  of  law.  But,  in  addition  to  these 
reasons,  the  decisions  which  have  been  made  on  this  subject  remove 
all  doubts  whatever.  It  is  not  necessary  to  go  through  them,  be- 
cause they  were  mentioned  in  the  argument,  and  are  collected  in 
H.  Bl.  Rep.  C.  B.  131,  133,  note;  Salomons  v.  Ross,  before  Lord 
Bathurst;  Jollet  and  Another  v.  Deponthien  and  Barril,  before 
Lord  Camden ;  and  Neale  and  Another  v.  Cottingham  and  Another, 
in  Ireland,  before  Lord  Chancellor  Lifford.  The  second  of  these  I 
have  reason  to  believe  was  considered  by  Lord  Camden  as  a  very  clear 
case;  for  he  did  not  think  it  important  enough  even  to  make  a  note 
of  it  in  his  book ;  and  although  the  last  case  was  not  decided  in  this 
country,  yet  it  was  determined  by  a  very  respectable  authority,  Lord 
Lifford,  assisted  by  several  of  the  judges,  and  that  noble  Lord  was 
conversant  with  the  laws  of  this  coimtry,  having  sat  on  the  bench 
here  for  several  years  before  he  went  to  Ireland,  and  we  know  also 
that  Davis'  reports  of  the  decisions  in  that  country  are  cited  as  au- 
thority here.  There  are  therefore  these  three  decisions,  in  addition 
to  the  case  before  Lord  Hardwicke,  in  support  of  our  opinion ;  and 
there  are  none  to  the  contrary,  except  indeed  what  was  said  in  Wil- 
son's Case;  and  that  seems  to  have  turned  on  mistaking  the  import 
of  the  word  "voluntary." 

We  are  therefore  clearly  of  opinion  that  the  plaintiffs  are  entitled 
to  judgment.-® 

2  8  See,  also,  Sill  v.  Worswick,  1  H.  Bl.  665  (1791) ;  Phillips  v.  Hunter,  2  H. 
Bl.  402  (1795). 

If  English  creditors  obtain  satisfaction  of  their  claims  by  means  of  a  for- 
eign judgment  in  rem  they  may  retain  the  fruits  as  against  the  liquidator. 
Minna  Craig  S.  S.  Co.  v.  Chartered  Mercantile  Bank  of  India  [1897]  1  Q.  B. 
55.  Foreign  creditors,  it  would  seem,  cannot  be  held  by  the  trustee  in  any 
event.  But  if  they  have  obtained  part  paj^ment  out  of  assets  that  pass  to  the 
trustee,  they  must  account  for  what  they  received  before  they  will  be  allowed 
to  prove  for  the  balance  in  the  English  bankruptcy  proceedings.  Ex  parte 
Wilson  [1S72]  L.  R.  7  Ch.  490 ;  Banco  de  PortuguaL  v.  Waddell  [1S80J  5  App. 


736  PARTICULAR  SUBJECTS.  (P^rt  2 

Matter  of  Accounting  of  WAITE. 
(Court  of  Appeals  of  New  York,  18S5.     99  N.  Y.  433,  2  N.  E.  440.) 

Earl,  J.^^  On  the  15th  day  of  October,  1881,  Haynes  &  Sanger,  a 
firm  doing  business  in  the  city  of  New  York,  having  become  insolvent, 
made  a  general  assignment  for  the  benefit  of  their  creditors  to  Charles 
Waite,  who  was  a  member  of  the  firm  of  Pendle  &  Waite,  and  in  their 
assignment  preferred  that  firm  as  creditors  for  a  large  amount.  Pendle 
&  Waite  did  business  in  New  York  and  London ;  Waite  being  a  citizen 
of  this  country,  residing  in  the  city  of  New  York,  and  having  charge 
of  the  business  of  his  firm  there,  and  Pendle  being  a  citizen  of  England 
and  having  charge  of  the  firm  business  there.  That  firm  became  in- 
solvent and  suspended  business  in  England  in  February,  1883,  and 
Waite  then  went  to  England,  and  there  he  and  Pendle  filed  a  petition 
in  the  London  court  of  bankruptcy,  in  which  they  recited  their  inabil- 
ity to  pay  their  debts  in  full,  and  that  they  were  "desirous  of  institut- 
ing proceedings  for  the  liquidation  of  their  afifairs  by  arrangement  or 
composition  with  their  creditors,  and  hereby  submit  to  the  jurisdiction 
of  this  court  in  the  matter  of  such  proceeding."  Waite  signed  the 
petition  in  person,  and  through  his  counsel  at  once  secured  the  appoint- 
ment of  Schofield  as  receiver  in  bankruptcy  of  the  firm  property. 

Liquidation  by  arrangement  or  composition  is  a  proceeding  under 
the  English  bankruptcy  act,  which  provides  that  the  filing  of  such  a 
petition  is  an  act  of  bankruptcy ;  that  a  compromise  proposition  may  be 
made  by  a  debtor,  and  that  if  such  proposition  shall  be  accepted  by 
the  creditors  at  a  general  meeting,  and  then  confirmed  at  a  second 
general  meeting,  and  registered  by  the  court,  it  becomes  binding,  and 
may  be  carried  out  under  the  supervision  of  the  court;  that  if  it  ap- 
pears to  the  court,  on  satisfactory  evidence,  that  a  composition  cannot, 
in  consequence  of  legal  difficulties,  or  for  any  other  sufficient  cause, 
proceed  without  injustice  or  undue  delay  to  the  creditors  or  the  debtor, 
the  court  may  adjudge  the  debtor  a  bankrupt,  and  proceedings  may 
be  had  accordingly;  and  that  the  title  of  the  trustee  in  bankruptcy, 
when  appointed,  relates  back  to  the  time  of  the  commission  of  the  act 
of  bankruptcy. 

For  reasons  which  it  is  unnecessary  now  to  consider  or  relate,  the 
composition  failed,  and  then,  upon  the  application  of  creditors,  which 
was  opposed  by  Waite,  Pendle  &  Waite  were  adjudged  bankrupts,  and 
Schofield  was  appointed  trustee  of  the  firm  property.  By  the  English 
law  the  due  appointment  of  a  trustee  in  bankruptcy,  under  the  Eng- 

Cas.  161.  Neither  English  nor  foreign  creditors  need  account  for  what  they 
have  received  in  a  foreign  jurisdiction  out  of  property  that  did  not  pass  to  the 
assignee  (e.  g.  real  estate).    Cockerell  v.  Dickens,  3  Mo.  P.  C.  98  (1840). 

See,  in  general,  Dicey,  Conflict  of  Laws,  435-443 ;  Westlake,  Priv.  Int.  Law, 
lGS-171. 

20 A  part  of  the  opinion  has  been  omitted. 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  737 

lish  bankruptcy  act,  transfers  to  the  trustee  all  the  personal  property 
of  the  bankrupt,  wherever  situated,  whether  in  Great  Britain  or  else- 
where. 

Notwithstanding  his  bankruptcy,  Waite  continued  to  act  as  assignee 
of  Haynes  &  Sanger,  and  converted  the  assets  of  that  firm  into  money, 
and,  under  the  preference  given  to  his  firm,  paid  himself  for  the  firm  of 
Pendle  &  Waite  the  sum  of  $14,333.70.  He  paid  no  portion  of  that 
sum  to  Pendle  or  to  the  creditors  of  his  firm,  the  American  creditors  of 
such  firm  having  been  fully  paid  from  other  assets  of  the  firm. 

After  all  this,  Waite  filed  his  petition  in  the  court  of  common  pleas 
of  the  city  of  New  York  for  a  settlement  of  his  accounts  as  assignee, 
and  citations  were  issued,  served,  and  published  for  that  purpose,  and 
a  referee  was  appointed  to  take  and  state  his  accounts.  In  his  accounts 
he  entered  and  claimed  a  credit  for  the  sum  paid  to  himself  as  above 
stated.  Schofield,  through  his  attorney,  appeared  upon  the  accounting, 
and  as  trustee  objected  to  the  credit,  and  claimed  that  that  sum  should 
be  paid  to  him.  The  referee  ruled  that  the  law  of  this  state  does  not 
recognize  the  validity  of  foreign  bankruptcy  proceedings  to  transfer 
title  to  property  of  the  bankrupt  situated  here,  and  for  that  reason  held 
that  the  payment  by  Waite  as  assignee  to  himself,  as  a  member  of  the 
firm  of  Pendle  &  Waite,  was  valid,  and  that  he  was  entitled  to  the 
credit  claimed.  The  same  view  of  the  law  was  taken  at  the  special 
and  general  terms  of  the  common  pleas,  and  then  Schofield  appealed  to 
this  court. 

We  have  stated  the  facts  as  found  by  the  referee  and  as  the  respond- 
ent did  not  and  could  not  except  to  the  findings,  and  is  therefore  in 
no  condition  to  complain  of  them,  we  must  assume  that  they  were  bas- 
ed upon  sufficient  evidence. 

The  transfer  of  the  property  of  Pendle  &  Waite  to  Schofield,  as  trus- 
tee, was  in  invitum  solely  by  operation  of  the  English  bankrupt  law. 
While  the  proceeding  first  instituted  by  the  bankrupts  to  arrange  a 
composition  with  their  creditors  was  voluntary,  the  final  proceeding 
through  which  the  adjudication  in  bankruptcy  was  had,  and  the  trustee 
appointed,  was  adversary  and  against  their  will,  having  no  basis  of 
voluntary  consent  to  rest  on.  Willitts  v.  Waite,  25  N.  Y.  577.  If  the 
transfer  effected  by  the  bankruptcy  proceedings  is  to  have  the  same  ef- 
fect here  as  in  England,  then  the  title  to  the  money  due  to  the  bank- 
rupts from  Haynes  &  Sanger  was  vested  in  the  trustee.  Schofield  was 
appointed  receiver  of  the  property  of  the  bankrupts  in  March,  1882, 
and  then  the  title  passed  out  of  them.  That  title  continued  in  him  as 
receiver  until  he  was  appointed  trustee.  After  he  was  appointed  re- 
ceiver, and  before  or  after  he  was  appointed  trustee,  (which  does  not 
appear,)  Waite,  as  assignee,  paid  himself,  as  a  member  of  the  firm  of 
Pendle  &  Waite,  the  sum  of  money  in  controversy.  He  had  notice 
of  the  bankruptcy  proceedings,  and  knew  that  the  title  to  the  money 
due  from  Haynes  &  Sanger,  and  from  himself  as  their  assignee,  had 
passed  out  of  the  bankrupts  to  Schofield,  and  hence  he  had  no  right  tc 
LoB.CoNF.L. — 47 


738  PARTICULAR  SUBJECTS.  (Part  2 

make  payment  to  them.  Schofield  became  substituted  in  their  place,  and 
Waite  was  bound  to  make  payment  to  him,  and  cannot,  therefore,  have 
credit  for  a  payment  wrongfully  made ;  and  Schofield,  standing  in  the 
place  of  the  original  creditors  of  Haynes  &  Sanger,  had  the  right  to 
appear  upon  the  accounting  and  object  to  the  erroneous  payment  made 
in  disregard  of  his  rights.  But  the  alleged  payment  was  merely  formal, 
not  real.  Waite,  the  assignee,  still  has  the  money,  and  is  accountable 
for  it  to  the  proper  party.  It  is  not  perceived  how  it  can  be  claimed  that 
Schofield  was  bound  at  any  time  before  the  accounting  to  make  any 
demand  upon  the  assignee.  He  was  a  creditor,  holding  the  claim  orig- 
inally due  to  Pendle  &  Waite,  and  as  such  he  could  appear  upon  the 
accounting  with  all  the  rights  of  any  other  creditor  to  protect  his  in- 
terests, and  he  could  not  be  prejudiced  by  a  payment  alleged  to  have 
been  made  by  the  assignee  to  himself.  All  this  is  upon  the  assump- 
tion that  the  transfer  to  Schofield,  as  trustee,  is  to  have  the  same  force 
and  effect  here  as  against  the  bankrupts  as  in  England ;  and  whether  it 
must  have,  is  the  important  and  interesting  question  to  be  determined 
upon  this  appeal.  It  matters  not  that  Waite  was  a  citizen  of  this  coun- 
try, domiciled  here.  He  went  to  England,  and  invoked  and  submitted 
to  the  jurisdiction  of  the  bankruptcy  court  there,  and  is  bound  by  its 
adjudication  to  the  same  extent  as  if  he  had  been  domiciled  there.  The 
adjudication  estopped  him  just  as  every  party  is  estopped  by  the  ad- 
judication of  a  court  which  has  jurisdiction  of  his  person  and  of  the 
subject-matter. 

We  have  not  a  case  here  where  there  is  a  conflict  between  the  foreign 
trustee  and  domestic  creditors.  So  far  as  appears,  no  injustice  what- 
ever will  be  done  to  any  of  our  own  citizens,  or  to  any  one  else,  by  al- 
lowing the  transfer  to  have  full  effect  here.  Indeed,  justice  seems  to 
require  that  this  money  should  be  paid  to  the  foreign  trustee  for  dis- 
tribution among  the  foreign  creditors  of  the  bankrupts.  The  eft'ect  to 
be  given  in  any  country  to  statutory  in  invitum  transfers  of  property 
through  bankruptcy  proceedings  in  a  foreign  country  has  been  a  sub- 
ject of  much  discussion  among  publicists  and  judges,  and  unanimity  of 
opinion  has  not  been,  and  probably  never  will  be,  reached.  We  shall 
not  enter  much  into  the  discussion  of  the  subject,  and  thus  travel  over 
ground  so  much  marked  by  the  footsteps  of  learned  jurists.  Our  main 
endeavor  will  be  to  ascertain  what,  by  the  decisions  of  the  courts  of 
this  state,  has  become  the  law  here. 

[The  learned  justice  here  examined  Bird  v.  Caritat,  2  Johns.  342,  3 
Am.  Dec.  433,  Raymond  v.  Johnson,  11  Johns.  488,  Holmes  v.  Remsen, 
4  Johns.  Ch.  460,  8  Am.  Dec.  581,  Holmes  v.  Remsen,  20  Johns.  229, 
11  Am.  Dec.  269,  Plestoro  v.  Abraham,  1  Paige,  236,  Abraham  v. 
Plestoro,  3  Wend.  538,  20  Am.  Dec.  738,  Johnson  v.  Hunt,  23  Wend. 
87,  Hoyt  v.  Thompson,  5  N.  Y.  32.0,  Id.,  19  N.  Y.  207,  Willitts  v. 
Waite,  25  N.  Y.  577.] 

From  all  these  cases  the  following  rules  are  to  be  deemed  thor- 
oughly recognized  and  established  in  this  state:     (1)  The  statutes 


Ch.  5)  FOREIGN  ADMIXISTRATIOXS.  739 

of  foreign  states  can  in  no  case  have  any  force  or  effect  in  this 
state  ex  proprio  vigore,  and  hence  the  statutory  title  of  foreign  as- 
signees in  bankruptcy  can  have  no  recognition  here  solely  by  virtue 
of  the  foreign  statute.  (2)  But  the  comity  of  nations,  which  Judge 
Denio  in  Peterson  v.  Chemical  Bank,  32  N.  Y.  21,  88  Am.  Dec.  298, 
said  is  a  part  of  the  common  law,  allows  a  certain  effect  here  to 
titles  derived  under  and  powers  created  by  the  laws  of  other  coun- 
tries, and  from  such  comity  the  titles  of  foreign  statutory  assignees 
are  recognized  and  enforced  here,  when  they  can  be,  without  injus- 
tice to  our  own  citizens,  and  without  prejudice  to  the  rights  of  cred- 
itors pursuing  their  remedies  here  under  our  statutes :  provided, 
also,  that  such  titles  are  not  in  conflict  with  the  laws  or  the  public 
policy  of  our  state.  (3)  Such  foreign  assignees  can  appear,  and, 
subject  to  the  conditions  above  mentioned,  maintain  suits  in  our 
courts  against  debtors  of  the  bankrupt  whom  they  represent,  and 
against  others  who  have  interfered  with  or  withheld  the  property  of 
the  bankrupt. 

If  it  be  admitted,  as  it  must  be  under  the  authorities  cited,  that 
Schofield  can,  as  assignee  of  Pendle  &  Waite,  have  a  standing  in  our 
courts,  and  that  his  title  will  be  so  far  recognized  here  that  he  can 
sue  the  debtors  of  that  firm  to  recover  the  amount  owing  to  the  firm, 
why  may  he  not  sue  the  bankrupts  ?  If  the  assignee  could  sue  Haynes 
&  Sanger  to  recover  what  they  owed  the  bankrupts,  why  can  he  not 
be  permitted  to  sue  the  bankrupts  for  money  or  property  placed  in 
their  hands  to  pay  the  debt?  If  he  could  sue  Haynes  &  Sanger,  why 
could  he  not  sue  their  assignee,  although  a  member  of  the  bankrupt 
firm,  to  recover  the  money  placed  in  his  hands  to  pay  their  debt? 
No  principle  of  justice,  no  public  policy,  requires  the  courts  of  this 
state  to  ignore  the  title  of  this  assignee  at  the  instance  of  one  of 
the  bankrupts.  No  injustice  will  be  done  to  Waite  if  this  money  be 
taken  to  pay  his  creditors,  and  public  policy  does  not  require  that 
the  courts  of  this  state  should  protect  him  in  his  efforts  either  to 
cheat  his  creditors  or  his  partner.  If  it  be  conceded,  as  it  must  be, 
that  the  title  of  a  foreign  statutory  assignee  is  good  in  this  state  for 
any  purpose  against  anybody,  it  seems  to  us  that  it  ought  to  be  held 
good  against  the  bankrupt,  against  whom  an  adjudication  in  'bank- 
ruptcy has  been  pronounced  which  is  binding  upon  him. 

Before  such  an  adjudication  can  be  held  to  be  efiicacious  in  a  for- 
eign country  to  transfer  title  to  property,  the  bankrupt  court  must 
have  had  jurisdiction  of  the  bankrupt  either  because  made  in  the 
country  of  his  domicile,  or  because  he,  although  domiciled  else- 
where, submitted  to  the  jurisdiction,  or  in  some  other  way  came 
under  the  jurisdiction  of  the  bankrupt  court.  Here  Pendle  &  Waite 
did  most  of  their  business  in  England.  Most  of  their  assets  and  of 
their  creditors  were  there,  and  while  Pendle  alone  was  domiciled 
there,  Waite  went  there  and  submitted  to  the  jurisdiction  of  the  bank- 
rupt court,  and  exposed  himself  to  the  operation  of  English  law. 


740  PARTICULAR  SUBJECTS.  (Part  2 

He  is  therefore  bound  by  the  adjudication  of  the  court  as  he  would 
have  been  if  domiciled  there  and  the  judgment  had  been  in  a  com- 
mon-law court  upon  any  personal  cause  of  action. 

The  decisions  in  the  federal  courts  and  in  most  of  the  other  states 
are  in  harmony  with  the  views  we  have  expressed,  and  so  are  the 
doctrines  of  all  the  great  jurists  who  have  written  upon  the  subject 
of  private  international  law.  2  Bell,  Comm.  681,  687 ;  Wheat.  Int. 
Law  (8th  Ed.  by  Dana)  §§  89-91,  144,  and  note;  2  Kent,  Comm.  405; 
Whart.  Confl.  Laws,  §§  353,  368,  391,  735,  736;  Story,  Confl.  Laws, 
§§  403,  410,  412,  414,  420,  421. 

There  are  but  two  cases  in  this  state  which  really  hold  anything 
in  conflict  with  these  views,  and  they  are  Mosselman  v.  Caen,  34 
Barb.  66;  Mosselman  v.  Caen,  4  Thomp.  &  C.  171.  In  the  first  case 
the  action  was  by  foreign  trustees  appointed  in  bankruptcy  proceed- 
ings to  recover  goods  in  the  possession  of  the  defendant  in  this  coun- 
try, and  the  plaintififs  recovered.  The  defendant  appealed,  and 
sought  to  reverse  the  judgment  upon  the  ground  that  the  plaintiffs 
did  not,  as  trustees,  have  any  title  to  the  property.  The  judgment 
was  affirmed  on  the  ground  that  the  defendant  did  not  raise  the  ques- 
tion of  title  at  the  trial.  But  the  judges  writing  were  of  opinion 
that,  the  plaintiffs  did  not  have  any  title  to  the  bankrupt's  property 
located  here,  and  one  of  them  (Sutherland,  J.)  stated  that  the  case 
of  Abraham  v.  Plestoro,  3  Wend.  538,  20  Am.  Dec.  738,  confirmed  by 
Johnson  v.  Hunt,  23  Wend.  87,  "would  seem  to  be  conclusive  upon 
the  question  whether  our  courts  will  recognize  or  enforce  a  right 
or  title  acquired  under  a  foreign  bankrupt  law  or  foreign  bankruptcy 
judicial  proceedings.  The  case  of  Abraham  v.  Plestoro  was  certain- 
ly very  broad  in  its  repudiation  of  foreign  bankruptcy  proceedings, 
and  went  much  further  than  the  case  of  Holmes  v.  Remsen,  20 
Johns.  229,  11  Am.  Dec.  269 ;  but  I  think  it  must  be  deemed  conclu- 
sive authority  for  saying  that  had  the  defendant  raised  the  question 
by  demurrer,  or  on  the  trial,  it  must  have  been  held  that  the  plain- 
tiffs could  not  maintain  this  action."  In  the  second  case,  Davis,  P. 
J.,  writing  the  opinion  of  the  court,  said :  "It  seems  to  be  the  set- 
tled law  of  this  state  that  our  courts  will  not  recognize  or  enforce 
a  right  or  title  acquired  under  a  foreign  bankrupt  law  or  foreign 
proceedings  so  far  as  affects  property  within  their  jurisdiction  or 
demands  against  residents  of  the  state."  These  two  cases  are  un- 
supported by  authority,  and  are,  we  think,  opposed  to  sound  prin- 
ciples, and  are  in  conflict  with  the  current  of  authority  in  this  state. 

We  are  therefore  of  opinion  that  Schofield  was  competent  to  appear 
upon  the  accounting  to  protect  the  interests  of  the  bankrupt  estate 
which  he  represented ;  and  that,  upon  the  facts  as  they  appear  in  this 
record,  his  objection  to  the  allowance  of  the  payment  made  by  the 
assignee  to  himself  ought  to  have  prevailed,  and  that  he  should  be 
recognized  as  a  creditor  for  the  amount  of  such  payment.  It  folloAvs 
that  the  orders  of  the  general  and  special  terms  should  be  reversed, 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  741 

and  as  the  facts  may  be  varied,  or  more  fully  presented  upon  a  new 
hearing,  the  matter  shoufd  be  remitted  to  the  special  term  for  fur- 
ther proceedings  upon  the  same  or  new  evidence  in  accordance  with 
the  rules  of  law  herein  laid  down ;  and  that  the  appellant  should 
recover  from  the  respondent  costs  of  the  appeals  to  the  general  term, 
and  to  this  court.  All  concur. 
Ordered  accordingly. 


SECURITY  TRUST  CO.  v.  DODD,  MEAD  &  CO. 

(Supreme  Court  of  the  United  States,  3899.     173  U.  S.  624,  19  Sup.  Ct.  545, 

43  L.  Ed.  83.) 

This  was  an  action  originally  instituted  in  the  district  court  for 
the  Second  judicial  district  of  Minnesota,  by  the  Security  Trust 
Company,  as  assignee  of  the  D.  D.  Merrill  Company,  a  corporation 
organized  under  the  laws  of  Minnesota,  against  the  firm  of  Dodd, 
Mead  &  Co.,  a  partnership  resident  in  New  York,  to  recover  the 
value  of  certain  stereotyped  and  electrotyped  plates  for  printing 
books,  upon  the  ground  that  the  defendants  had  unlawfully  con- 
verted the  same  to  their  own  use.  The  suit  was  duly  removed  from 
the  state  court  to  the  Circuit  Court  of  the  United  States  for  the 
District  of  Minnesota,  and  was  there  tried.  Upon  such  trial  the  fol- 
lowing facts  appeared : 

The  D.  D,  Merrill  Company  having  become  insolvent  and  unable 
to  pay  its  debts  in  the  usual  course  of  business,  on  September  23, 
1893,  executed  to  the  Security  Trust  Company,  the  plaintiff  in  er- 
ror, an  assignment  under  and  pursuant  to  the  provisions  of  chapter 
148  of  the  Laws  of  1881  of  the  state  of  Minnesota,  which  assignment 
was  properly  filed  in  the  office  of  the  clerk  of  the  district  court. 
The  trust  company  accepted  the  same,  qualified  as  assignee,  took 
possession  of  such  of  the  property  as  was.fotmd  in  Minnesota,  and 
disposed  of  the  same  for  the  benefit  of  creditors,  the  firm  of  Dodd, 
Mead  &  Co.  having  full  knowledge  of  the  execution  and  filing  of 
such  assignment. 

At  the  date  of  this  assignment  the  D.  D.  Merrill  Company  was  in- 
debted to  Dodd,  Mead  &  Co.  of  New  York,  in  the  sum  of  $1,249.98, 
and  also  to  Alfred  Mudge  &  Sons,  a  Boston  copartnership,  in  the 
sum  of  $126.80,  which  they  duly  assigned  and  transferred  to  Dodd, 
Mead  &  Co.,  making  the  total  indebtedness  to  them  $1,376.78. 

Prior  to  the  assignment  the  D.  D.  Merrill  Company  was  the  own- 
er of  the  personal  property  for  the  value  of  which  this  suit  was 
brought.  This  property  was  in  the  custody  and  possession  of  Alfred 
Mudge  &  Sons  at  Boston,  Mass.,  until  the  same  was  attached  by  the 
sheriff  of  Suffolk  county,  as  hereinafter  stated. 

The  firm  of  Alfred  Mudge  &  Sons  was,  prior  to  March  8,  1894, 
informed  of  the  assignment  by  the  Merrill  Company,  and  at  about 


742  PARTICULAR  SUBJECTS.  (Part  2 

the  date  of  such  assignment  a  notice  was  served  upon  them  by 
George  E.  Merrill  to  the  effect  that  he  (Merrill)  took  possession  of 
the  property  in  their  custody  for  and  in  behalf  of  the  Security  Trust 
Company,  assignee  aforesaid. 

On  March  8,  1894,  Dodd,  Mead  &  Co.  commenced  an  action 
against  the  D.  D.  Merrill  Company  in  the  superior  court  of  the 
county  of  Suffolk  upon  their  indebtedness,  caused  a  writ  of  attach- 
ment to  be  issued,  and  the  property  in  possession  of  Mudge  &  Sons 
seized  upon  such  writ.  A  summons  was  served  by  publication  in 
the  manner  prescribed  by  the  Massachusetts  statutes,  although  there 
was  no  personal  service  upon  the  Merrill  Company.  The  Security 
Trust  Company,  its  assignee,  was  informed  of  the  bringing  and  pen- 
dency of  this  suit,  and  the  seizure  of  the  property,  prior  to  the  enter- 
ing of  a  judgment  in  said  action,  which  judgment  was  duly  rendered 
August  6,  1894,  execution  issued,  and  on  September  27,  1894,  the 
attached  property  was  sold  at  public  auction  to  Dodd,  Mead  &  Co., 
the  execution  creditors,  for  the  sum  of  $1,000. 

Upon  this  state  of  facts  the  Circuit  Court  of  Appeals  certified  to 
this  court  the  following  questions : 

"First.  Did  the  execution  and  delivery  of  the  aforesaid  deed  of 
assignment  by  the  D.  D.  Merrill  Company  to  the  Security  Trust 
Company,  and  the  acceptance  of  the  same  by  the  latter  company, 
and  its  qualification  as  assignee  thereunder,  vest  said  assignee  with 
the  title  to  the  personal  property  aforesaid,  then  located  in  the  state 
of  Massachusetts,  and  in  the  custody  and  possession  of  said  Alfred 
Mudge  &  Sons  ? 

"Second.  Did  the  execution  and  delivery  of  said  assignment  and 
the  acceptance  thereof  by  the  assignee,  and  its  qualification  thereun- 
der, in  the  manner  aforesaid,  together  with  the  notice  of  such  as- 
signment which  was  given,  as  aforesaid,  to  Alfred  Mudge  &  Sons 
prior  to  March  8,  1894,  vest  the  Security  Trust  Company  with  such 
a  title  to  the  personal  property  aforesaid  on  said  March  8,  1894, 
that  it  could  not  on  said  day  be  lawfully  seized  by  attachment  un- 
der process  issued  by  the  superior  court  of  Suffolk  county,  Massa- 
chusetts, in  a  suit  instituted  therein  by  creditors  of  the  D.  D.  Merrill 
Company,  who  were  residents  and  citizens  of  the  state  of  New  York, 
and  who  had  notice  of  the  assignment,  but  had  not  proven  their 
claim  against  the  assigned  estate  nor  filed  a  release  of  their  claim?" 

Brown,  J.^°  This  case  raises  the  question  whether  an  assignee 
of  an  insolvent'Minnesota  corporation  can  maintain  an  action  in  the 
courts  of  Minnesota  for  the  conversion  of  property  formerly,  belong- 
ing to  the  insolvent  corporation,  which  certain  New  York  creditors 
had  attached  in  Massachusetts,  and  sold  upon  execution  against  such 
corporation.  The  question  was  also  raised  upon  the  argument  how 
far  an  assignment  executed  in  Minnesota,  pursuant  to  the  general  as- 

80A  part  of  the  opinion  has  been  omitted. 


Ch.  5)  FOREiGx  ad:mixistratioxs.  743 

signment  law  of  that  state,  by  a  corporation  there  resident,  is  avail- 
able to  pass  personal  property  situated  in  Massachusetts,  as  against 
parties  resident  in  New  York,  who,  subsequent  to  the  assignment, 
had  seized  such  property  upon  an  attachment  against  the  insolvent 
corporation. 

The  assignment  was  executed  under  a  statute  of  Minnesota,  the 
material  provisions  of  which  are  hereinafter  set  forth.  The  instru- 
ment makes  it  the  duty  of  the  assignee  "to  pay  and  discharge,  in  the 
order  and  precedence  provided  by  law,  all  the  debts  and  liabilities 
now  due  or  to  become  due  from  said  party  of  the  first  part,  together 
with  all  interest  due  and  to  become  due  thereon,  to  all  its  creditors 
who  shall  file  releases  of  their  debts  and  claims  against  said  party  of 
the  first  part,  according  to  chapter  148  of  the  General  Laws  of  the 
State  of  Minnesota  for  the  year  1881,  and  the  several  laws  amenda- 
tory and  supplementary  thereof;  and,  if  the  residue  of  said  proceeds 
shall  not  be  sufficient  to  pay  said  debts  and  liabilities  and  interest 
in  full,  then  to  apply  the  same,  so  far  as  they  will  extend,  to  the 
payment  of  said  debts  and  liabilities  and  interest,  proportionately 
on  their  respective  amounts,  according  to  law  and  the  statute  in 
such  case  made  and  provided ;  and  if,  after  the  payment  of  all  the 
costs,  charges,  and  expenses  attending  the  execution  of  said  trust, 
and  the  payment  and  discharge  in  full  of  all  the  said  debts  of  the 
party  of  the  first  part,  there  shall  be  any  surplus  of  the  said  proceeds 
remaining  in  the  hands  of  the  party  of  the  second  part,  then,  third, 
repay  such  surplus  to  the  party  of  the  first  part,  its  successors  and 
assigns." 

The  operation  of  voluntary -or  common-law  assignments  upon 
property  situated  in  other  states  has  been  the  subject  of  frequent 
discussion  in  the  courts,  and  there  is  a  general  consensus  of  opin- 
ion to  the  effect  that  such  assignments  will  be  respected,  except  so 
far  as  they  come  in  conflict  with  the  rights  of  local  creditors,  or 
with  the  laws  or  public  policy  of  the  state  in  which  the  assignment 
is  sought  to  be  enforced.  The  cases  in  this  court  are  not  numerous, 
but  they  are  all  consonant  with  the  above  general  principle.  Black 
V.  Zacharie,  3  How.  483,  11  L.  Ed.  690;  Livermore  v.  Jenckes,  21 
How.  126,  16  L.  Ed.  55 ;  Green  v.  Van  Buskirk,  5  Wall.  307,  18  L. 
Ed.  599 ;  Hervey  v.  Locomotive  Works,  93  U.  S.  664,  23  L.  Ed.  1003  ; 
Cole  v.  Cunningham,  133  U.  S.  107,  10  Sup.  Ct.  269,  33  L.  Ed.  538; 
Barnett  v.  Kinney,  147  U.  S.  476,  13  Sup.  Ct.  403,  37  L.  Ed.  247. 

But  the  rule  with  respect  to  statutory  assignments  is  somewhat 
different.  While  the  authorities  are  not  altogether  harmonious,  the 
prevailing  American  doctrine  is  that  a  conveyance  under  a  state  in- 
solvent law  operates  only  upon  property  within  the  territory  of  that 
state,  and  that  with  respect  to  property  in  other  states  it  is  given 
only  such  effect  as  the  laws  of  such  state  permit,  and  that,  in  gen- 
eral, it  must  give  way  to  claims  of  creditors  pursuing  their  reme- 
dies there.     It  passes  no  title  to  real  estate  situated  in  another  state. 


744  PARTICULAR  SUBJECTS.  (Part  2 

Nor,  as  to  personal  property,  will  the  title  acquired  by  it  prevail 
against  the  rights  of  attaching  creditors  under  the  laws  of  the  state 
where  the  property  is  actually  situated.  Harrison  v.  Sterry,  5 
Cranch,  289,  302,  3  L.  Ed.  104;  Ogden  v.  Saunders,  12  Wheat.  213, 
6  L.  Ed.  606;  Booth  v.  Clark,  17  How.  322,  15  L.  Ed.  164;  Blake  v. 
Williams,  6  Pick.  (Mass.)  286,  17  Am.  Dec.  372;  Osborn  v.  Adams, 
18  Pick.  (Mass.)  245;  Zipcey  v.  Thompson,  1  Gray  (Mass.)  243; 
Abraham  v.  Plestoro,  3  Wend.  (N.  Y.)  538,  20  Am.  Dec.  738,  over- 
ruling Holmes  v.  Remsen,  4  Johns.  Ch.  (N.  Y.)  460,  8  Am.  Dec.  581 ; 
Johnson  v.  Hunt,  23  Wend.  (N.  Y.)  87;  Hoyt  v.  Thompson,  5  N. 
Y.  320 ;  Willitts  v.  Waite,  25  N.  Y.  577 ;  Kelly  v.  Crapo,  45  N.  Y.  86, 
6  Am.  Rep.  35 ;  Barth  v.  Backus,  140  N.  Y.  230,  35  N.  E.  425,  23  L. 
R.  A.  47,  37  Am.  St.  Rep.  545 ;  Weider  v.  Maddox,  66  Tex.  372,  1 
S.  W.  168,  59  Am.  Rep.  617;  Rhawn  v.  Pearce,  110  111.  350,  51  Am. 
Rep.  691 ;  Catlin  v.  Silver-Plate  Co.,  123  Ind.  477,  24  N.  E.  250,  8 
L.  R.  A.  62,  18  Am.  St.  Rep.  338.  As  was  said  by  Mr.  Justice  Mc- 
Lean in  Oakey  v.  Bennett,  11  How.  33,  44,  13  L.  Ed.  593 :  "A  stat- 
utable conveyance  of  property  cannot  strictly  operate  beyond  the 
local  jurisdiction.  Any  effect  which  may  be  given  to  it  beyond  this 
does  not  depend  upon  international  law,  but  the  principle  of  comity; 
and  national  comity  does  not  require  any  government  to  give  effect 
to  such  assignment  when  it  shall  impair  the  remedies  or  lessen  the 
securities  of  its  own  citizens.  And  this  is  the  prevailing  doctrine 
in  this  country.  A  proceeding  in  rem  against  the  property  of  a  for- 
eign bankrupt,  under  our  local  laws,  may  be  maintained  by  credit- 
ors, notwithstanding  the  foreign  assignment."  Similar  language  is 
used  by  Mr.  Justice  Story  in  his  Conflict  of  Laws  (section  414). 

The  statute  of  Minnesota,  under  which  this  assignment  was  made, 
provides  in  its  first  section  that  any  insolvent  debtor  "may  make  an 
assignment  of  all  his  unexempt  property  for  the  equal  benefit  of  all 
his  bona  fide  creditors,  who  shall  file  releases  of  their  demands  against 
such  debtor,  as  herein  provided" ;  that  such  assignments  shall  be  ac- 
knowledged and  filed,  and,  if  made  within  10  days  after  the  assignor's 
property  has  been  garnished  or  levied  upon,  shall  operate  to  vacate 
such  garnishment  or  levy  at  the  option  of  the  assignee,  with  certain 
exceptions.  The  second  section  provides  for  putting  an  insolvent 
debtor  into  involuntary  bankruptcy  on  petition  of  his  creditors,  upon 
his  committing  certain  acts  of  insolvency,  and  for  the  appointment 
by  the  court  of  a  receiver  with  power  to  take  possession  of  all  his 
property  not  exempt,  and  distribute  it  among  his  creditors.  Under 
either  section  only  those  creditors  receive  a  benefit  from  the  act  who 
file  releases  to  the  debtor  of  all  their  demands  against  him.  This 
statute  was  held  not  to  conflict  with  the  federal  Constitution  in  Denny 
V.  Bennett,  128  U.  S.  489,  9  Sup.  Ct.  134,  32  L.  Ed.  491. 

The  construction  given  to  this  act  by  the  Supreme  Court  of  Minne- 
sota has  not  been  altogether  uniform. 


Ch.  5)  FOREIGN   ADMINISTRATIONS,  745 

[The  learned  justice  here  examined  Wendell  v.  Lebon,  30  Minn.  234, 
15  N.  W.  109,  In  re  :\Iann,  33  Minn.  60,  19  N.  W.  347,  Jenks  v.  Lud- 
den,  34  Minn.  482,  27  N.'  W.  188,  Covey  v.  Cutler,  55  Minn.  18,  56 
N.  W.  255,  Hawkins  v.  Ireland,  64  Minn.  339,  67  N.  W.  73,  58  Am. 
St.  Rep.  534,  McClure  v.  Campbell,  71  Wis.  350,  37  N.  W.  343,  5 
Am,  St.  Rep.  220,  and  Franzen  v.  Hutchinson,  94  Iowa,  95,  62  N. 
W.  698.] 

Notwithstanding  the  two  later  cases  in  Minnesota  above  cited,  we 
are  satisfied  that  the  Supreme  Court  of  that  state  did  not  intend  to 
overrule  the  prior  decisions,  to  the  effect  that  the  act  was  substan- 
tially a  bankrupt  or  insolvent  law.  It  is  true  that  in  these  cases  a 
'  broader  effect  was  given  to  this  act  with  respect  to  property  in  other 
states  than  is  ordinarily  given  to  statutory  assignments,  though  vol- 
untary in  form.  But  the  court  was  speaking  of  its  power  over  its 
own  citizens,  who  had  sought  to  obtain  an  advantage  over  the  general 
creditors  of  the  insolvent  by  seizing  his  property  in  another  state. 
There  was  no  intimation  that  the  prior  cases  were  intended  to  be 
overruled,  nor  did  the  decisions  of  the  later  cases  require  that  they 
should  be. 

So  far  as  the  courts  of  other  states  have  passed  upon  the  question, 
they  have  generally  held  that  any  state  law  upon  the  subject  of  as- 
signments, which  limits  the  distribution  of  the  debtor's  property  to 
such  of  his  creditors  as  shall  file  releases  of  their  demands,  is  to  all 
intents  and  purposes  an  insolvent  law ;  that  a  title  to  personal  property 
acquired  under  such  laws  will  not  be  recognized  in  another  state  when 
it  comes  in  conflict  with  the  rights  of  creditors  pursuing  their  remedy 
there  against  the  property  of  the  debtor,  though  the  proceedings  were 
instituted  subsequent  to,  and  with  notice  of,  the  assignment  in  in- 
solvency. The  provision  of  the  statute  in  question,  requiring  a  re- 
lease from  the  creditors  in  order  to  participate  in  the  distribution  of 
the  estate,  operates  as  a  discharge  of  the  insolvent  from  his  debts  to 
such  creditors — a  discharge  as  complete  as  is  possible  under  a  bank- 
rupt law.  An  assignment  containing  a  provision  of  this  kind  would 
have  been,  in  many,  perhaps  in  most,  of  the  states,  void  at  common 
law.  Grover  v.  Wakeman,  11  Wend.  (N.  Y.)  187,  25  Am.  Dec.  624; 
Ingraham  v.  Wheeler,  6  Conn.  277;  Atkinson  v.  Jordan,  5  Ohio,  293, 
24  Am.  Dec.  281 ;  Burrill,  Assignm.  232-256.  As  was  said  in  Conk- 
ling  v.  Carson,  11  111.  508:  "A  debtor  in  failing  circumstances  has 
an  undoubted  right  to  prefer  one  creditor  to  another,  and  to  provide 
for  a  preference  by  assigning  his  effects;  'but  he  is  not  permitted  to 
say  to  any  of  his- creditors  that  they  shall  not  participate  in  his  present 
estate  unless  they  release  all  right  to  satisfy  the  residue  of  their  debts 
out  of  his  future  acquisitions."  In  Brashear  v.  West,  7  Pet.  60S,  8 
L.  Ed.  801,  an  assignment  containing  a  provision  of  this  kind  was 
upheld  with  apparent  reluctance,  solely  upon  the  ground  that  in  Penn- 
sylvania, where  the  assignment  was  made,  it  had  been  treated  as  valid. 
If  the  assignment  contain  this  feature,  the  fact  that  it  is  executed 


746  PARTICULAR  SUBJECTS.  (Part  2 

voluntarily,  and  not  in  invitum,  is  not  a  controlling  circumstance.  In 
some  states  a  foreign  assignee  under  a  statutory  assignment,  good  by 
the  law  of  the  state  where  made,  may  be  permitted  to  come  into  such 
state  and  take  possession  of  the  property  of  the  assignor  there  found, 
and  to  withdraw  it  from  the  jurisdiction  of  that  state,  in  the  absence 
of  any  objection  thereto  by  the  local  creditors  of  the  assignor;  but 
in  such  case  the  assignee  takes  the  property  subject  to  the  equity  of 
attaching  creditors,  and  to  the  remedies  provided  by  the  law  of  the 
state  where  such  property  is  found. 

A  somewhat  similar  statute  of  Wisconsin  was  held  to  be  an  in- 
solvent law  in  Barth  v.  Backus,  140  N.  Y.  230,  35  N.  E.  425,  23  L. 
R.  A.  47,  37  Am.  St.  Rep.  545,  and  an  assignment  under  such  statute 
treated  as  ineffectual  to  transfer  the  title  of  the  insolvent  to  property 
in  New  York,  as  against  an  attaching  creditor  there,  though  such 
creditor  was  a  resident  of  Wisconsin.  A  like  construction  was  given 
to  the  same  statute  of  Wisconsin  in  Townsend  v.  Coxe,  151  111.  62, 
37  N.  E.  689.  It  was  said  of  this  statute  (and  the  same  may  be  said 
of  the  statute  under  consideration) :  "It  is  manifest  from  these  pro- 
visions that  a  creditor  of  an  insolvent  debtor  in  Wisconsin,  who  makes 
a  voluntary  assignment,  valid  under  the  laws  of  that  state,  can  only 
avoid  a  final  discharge  of  the  debtor  from  all  liability  on  his  debt  by 
declining  to  participate  in  any  way  in  the  assignment  proceedings.  He 
is  therefore  compelled  to  consent  to  a  discharge  as  to  so  much  of  his 
debt  as  is  not  paid  by  dividends  in  the  insolvent  proceedings,  or  take 
the  hopeless  chance  of  recovering  out  of  the  assets  of  the  assigned  es- 
tate remaining  after  all  claims  allowed  have  been  paid."  To  the  same 
effect  are  Upton  v.  Hubbard,  28  Conn.  274,  73  Am.  Dec.  670;  Paine 
V.  Lester,  44  Conn.  196,  26  Am.  Rep.  442;  Weider  v.  Maddox,  66 
Tex.  372,  1  S.  W.  168,  59  Am.  Rep.  617;  CatHn  v.  Silver-Plate  Co., 
123  Ind.  477,  24  N.  E.  250,  8  L.  R.  A.  62,  18  Am.  St.  Rep.  338; 
Boese  v.  King,  78  N.  Y.  471. 

In  Taylor  v.  Insurance  Co.,  14  Allen  (Mass.)  353,  it  is  broadly  stated 
that  "when,  upon  the  insolvency  of  a  debtor,  the  law  of  the  state  in 
which  he  resides  assumes  to  take  his  property  out  of  his  control,  and 
to  assign  it  by  judicial  proceedings,  without  his  consent,  to  trustees 
for  distribution  among  his  creditors,  such  an  assignment  will  not  be 
allowed  by  the  courts  of  another  state  to  prevail  against  any  remedy 
which  the  laws  of  the  latter  afford  to  its  own  citizens  against  property 
within  its  jurisdiction."  But  the  weight  of  authority  is,  as  already 
stated,  that  it'makes  no  difference  whether  the  estate  of  the  insolvent 
is  vested  in  the  foreign  assignee  under  proceedings  instituted  against 
the  insolvent,  or  upon  the  voluntary  application  of  the  insolvent  him- 
self. The  assignee  is  still  the  agent  of  the  law,  and  derives  from  it 
his  authority.    Upton  v.  Hubbard,  28  Conn.  274,  73  Am.  Dec.  670. 

While  it  may  be  true  that  the  assignment  in  question  is  good  as  be- 
tween the  assignor  and  the  assignee,  and  as  to  assenting  creditors, 
to  pass  title  to  property  both  within  and  without  the  state,  and,  in  the 


Ch.  5)  FOREIGN   ADMINISTRATIONS.  747 

absence  of  objections,  by  nonassenting-  creditors,  may  authorize  the 
assignee  to  take  possession  of  the  assignor's  property  wherever  found, 
it  cannot  be  supported  as  to  creditors  who  have  not  assented,  and 
who  are  at  hberty  to  pursue  their  remedies  against  such  property  of 
the  assignor  as  they  may  find  in  other  states.  Bradford  v.  Tappan, 
11  Pick.  (Mass.)  76;  WilHtts  v.  Waite,  25  N.  Y.  577;  Cathn  v.  Silver- 
Plate  Co.,  123  Ind.  477,  24  N.  E.  250,  8  L.  R.  A.  62,  18  Am.  St.  Rep. 
338,  and  cases  above  cited. 

We  are  therefore  of  opinion  that  the  statute  of  Minnesota  was  in 
substance  and  effect  an  insolvent  law;  was  operative  as  to  property 
in  Massachusetts  only  so  far  as  the  courts  of  that  state  chose  to  re- 
spect it,  and  that  so  far  as  the  plaintiff,  as  assignee  of  the  D.  D.  JMer- 
rill  Company,  took  title  to  such  property,  he  took  it  subservient  to 
the  defendants'  attachment.  It  results  that  the  property  of  the  D.  D. 
Merrill  Company  found  in  Massachusetts  was  liable  to  attachment 
there  by  these  defendants,  and  that  the  courts  of  Minnesota  are  bound 
to  respect  the  title  so  acquired  by  them. 

The  second  question  must  therefore  be  answered  in  the  negative, 
and,  as  this  disposes  of  the  case,  no  answer  to  the  first  question  is 
necessary.^^ 

SI  A  foreign  involuntary  assignment  will  not  as  a  matter  of  comity  be  al- 
lowed to  prevail  as  to  creditors  who  are  residents  of  the  state  where  the 
property  is  found.  Taylor  v.  Columbian  Ins.  Co.,  14  Allen  (Mass.)  353  (1SG7). 
It  has  been  held  that  it  would  prevail  against  all  other  creditors.  Long  v. 
Girdwood,  150  Pa.  413,  24  Atl.  711,  23  L.  R.  A.  33  (1892).  Usually,  however, 
citizens  of  the  other  states  of  the  Union  are  placed  upon  the  same  footing  with 
citizens  of  the  state  where  the  property  is  found.  Paine  v.  Lester,  44  Conn. 
196,  26  Am.  Rep.  442  (1876);  Linville  v.  Hadden  &  Co.,  88  Md.  594,  41  Atl. 
1097,  43  L.  R.  A.  222  (1898).  As  to  whether  such  equality  is  imposed  by  the 
federal  Constitution,  see  Blalie  v.  McClung,  172  U.  S.  239,  19  Sup.  Ct.  165, 
43  L.  Ed.  432  (1898)  and  ante,  p.  322,  note.  Some  courts  have  extended  the 
same  rights  to  creditors  of  the  state  where  the  assignment  wf  s  made.  Taylor 
V.  Geary,  Kirby  (Conn.)  313  (1787);  Hibernian  Nat'l  Banli  v.  Lacombe,  84 
N.  Y.  367,  38  Am.  Rep.  518  (1881) ; '  Rhawn  v.  Pearce,  110  111.  350,  51  Am. 
Rep.  691  (1884) ;  Earth  v.  Baclius,  140  N.  Y.  230,  35  N.  E.  425,  23  L.  R.  A. 
47,  37  Am.  St.  Rep.  545  (1893).  Most  courts,  however,  allow  the  foreign  as- 
signment to  operate  with  respect  to  such  creditors.  Bagby  v.  Atlantic,  Miss. 
&  Oh.  R.  Co.,  86  Pa.  291  (1878) ;  Gilman  v.  Ketcham,  84  Wis.  60,  54  N.  W. 
395,  23  L.  R.  A.  52,  36  Am.  St.  Rep.  899  (1893) ;  Linville  v.  Hadden  &  Co.,  SS 
Md.  594,  41  Atl.  1097,  43  L.  R.  A.  222  (1898). 

Creditors,  who  voluntarily  become  parties  to  the  insolvency  proceedings,  are 
bound  thereby.  Gerdiug  v.  East  Tennessee  Laud  Co.,  185  Mass.  380,  70  N.  E. 
206  (1904). 

A  court  of  equity  may  enjoin  resident  creditors  from  proceeding  against  the 
debtor's  property  in  another  .iurisdiction.  Cole  v.  Cunningham,  133  U.  S.  107, 
10  SuD.  Ct.  269,  33  L.  Ed.  538  (1890);  Dehon  v.  Foster,  4  Allen  (Mass.)  545 
(1862) ;  Hawliins  v.  Ireland,  64  Minn.  339,  67  N.  W.  73,  58  Am.  St.  Rep.  534 
(1896).  Compare  Warner  v.  Jaffray,  96  N.  Y.  248,  48  Am.  Rep.  616  (1884).  a 
case  of  voluntaiT  assignment.  In  Dehon  v.  Foster,  supra,  such  injunction 
was  granted  notwithstanding  the  attachment  suit  was  commenced  before  the 
institution  of  proceedings  in  insolvency.  In  the  later  case  of  Lawrence  v. 
Batcheller,  131  Mass.  504  (1881),  it  was  held,  however,  that  payment  obtained 
in  another  state  under  an  attachment  made  prior  to  the  time  when  the  as- 
signment in  insolvency  took  effect  could  not  be  recovered  by  the  assignee,  aiul 
in  the  case  of  Batcheller  v.  National  Bank,  157  Mass.  33,  31  N.  E.  481  (1892), 
It  was  held  that  such  creditor  might  prove  for  the  balance  without  being  com- 


748  PABTicuLAE  SUBJECTS.  (Part  2 

BANK  COMMISSIONERS  v.  GRANITE  STATE  PROVIDENT 

ASS'N. 

(Supreme  C!ourt  of  New  Hampshire,  1901.    70  N.  H.  557,  49  Atl.  124,  85  Am. 

St.  Rep.  646.) 

Chase,  J.  The  defendants  were  incorporated  in  this  state  in  1881, 
and  were  authorized,  among  other  things,  to  carry  on  the  business 
of  a  building  and  loan  association.  Laws  1881,  p.  601,  c.  233.  Upon 
petition  of  the  plaintiffs,  David  A.  Taggart  was  appointed  assignee  of 
their  property  and  effects  March  18,  1896,  under  the  provisions  of 
section  15,  c.  162,  Pub.  St.  1901.  He  accepted  the  trust,  and  has  sub- 
stantially converted  all  the  assets  in  his  possession  into  cash.  The  de- 
fendants did  business  in  24  states,  and  ancillary  receivers  were  ap- 
pointed in  16  of  them.  These  receivers  have  also  substantially  con- 
verted the  assets  received  by  them  into  cash.  Some  of  them  are  ready 
and  willing  to  remit  their  balances  of  cash  above  expenses,  etc.,  to 
the  assignee,  some  have  refused  to  remit,  and  some  are  undecided 
whether  they  will  remit  or  not.  The  assignee  has  on  hand  a  sufficient 
sum  of  money  to  pay  the  expenses  of  administration  in  this  state  and 
the  debts  that  have  been  proved  here,  and  leave  a  balance  for  distri- 
bution among  shareholders.  The  shareholders  number  over  20,000. 
More  than  3,000  of  them  reside  in  New  York,  The  defendants  de- 
posited $100,000  with  the  New  York  superintendent  of  banks,  in  com- 
pliance with  the  provisions  of  the  banking  law  of  the  state,  in  order 
to  secure  the  privilege  of  doing  business  there.  An  ancillary  receiver 
in  that  state  was  appointed  in  an  action  brought  by  the  Attorney  Gen- 
eral, in  behalf  of  the  people,  for  the  sequestration  and  preservation 
of  the  assets  and  property  of  the  defendants  in  the  state,  and  for  an 
equitable  distribution  of  the  same  among  the  persons  entitled  thereto. 
Taggart  appeared  in  the  action,  and  claimed  that  the  funds  collected 
by  the  receiver  should  be  paid  to  him  for  distribution.  The  receiver 
has  realized  about  $69,000  from  the  sale  of  real  estate  located  there, 
and  from  collections  upon  mortgages  and  other  obligations  due  from 

pelled  to  account  for  the  amount  received  in  the  foreign  jurisdiction.  See, 
also.  Proctor  v.  National  Bank  of  the  Republic,  152  Mass.  223,  25  N.  E.  81, 
9  L.  R.  A.  122  (1890),  and  Chipman  v.  Manufacturers'  Nat.  Bank,  156  Mass. 
147,  30  N.  E.  610  (1892). 

As  to  the  effect  of  a  subsequent  assignment  to  the  receiver,  see  Ward  v. 
Connecticut  Pipe  Mfg.  Co.,  71  Conn.  345.  41  Atl.  1057,  42  L.  R.  A.  706,  71  Am. 
St.  Rep.  207  (1899) ;  Zacher  v.  Fidelity  Trust  &  Safety  Vault  Co.,  106  Fed. 
593,  45  C.  C.  A.  480  (1901) ;  Witters  v.  Globe  Savings  Bank,  171  Mass.  425,  50 
N.  E.  932  (1898),  and  Catlin  v.  Wilcox  Silver  Plate  Co.,  123  Ind.  477,  24  N, 
E.  250,  8  L.  R.  A.  62,  18  Am.  St.  Rep.  .338  (1890). 

See,  in  general,  23  L.  R.  A.  40^6;  65  L.  R.  A.  363-369;  Minor,  Conflict 
of  Laws,  §§  137-138 ;  Hollis  R.  Bailey,  An  Assignment  in  Insolvency  and  its 
Effect  upon  Property  and  Persons  out  of  the  State,  7  Harv.  Law  Rev.  281-' 
299. 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  749 

parties  in  that  state,  sent  to  him  by  the  assig-nee  under  authority  given 
by  this  court.  He  also  has  received  from  the  superintendent  of  banks 
the  $100,000  above  mentioned.  For  convenience,  the  first-named  sum 
is  hereinafter  designated  as  the  "general  fund,"  and  the  last-named 
as  the  "special  fund."  Creditors  residing  in  New  York  have  claims 
amounting  to  nearly  $117,000,  and  the  aggregate  par  value  of  the 
shares  of  shareholders  residing  there  is  upwards  of  $200,000.  The 
court  of  that  state  has  adjudged  that  the  receiver  pay  to  Taggart  the 
general  fund,  less  costs,  etc.,  upon  his  giving  an  undertaking  with  suffi- 
cient sureties  in  a  sum  double  the  amount  so  paid,  to  pay  the  New 
York  creditors  and  shareholders  the  same  rates  of  dividend  that  are 
awarded  to  other  creditors  and  shareholders  throughout  the  country, 
without  deduction  on  account  of  payments  to  the  former  of  dividends 
from  the  special  fund ;  or,  in  default  of  so  doing,  to  return  the  gen- 
eral fund  to  the  New  York  receiver.  As  to  the  special  fund,  the 
court  decreed  that,  after  deducting  costs,  etc.,  it  should  be  applied  first 
to  the  payment  of  the  balance,  if  any,  due  New  York  creditors,  and 
then  to  the  payment  of  New  York  shareholders  in  proportion  to  their 
respective  claims  until  paid  in  full,  and,  finally,  if  any  balance  was 
left,  to  pay  it  to  the  assignee. 

1.  One  question  raised  relates  to  the  eflfect  of  the  decision  in  the 
New  York  case — People  v.  State  Provident  Ass'n,  161  N.  Y.  492, 
55  N.  E.  1053.  Is  this  court  bound  to  distribute  the  fund  within  its 
control  so  that  New  York  shareholders  shall  receive  the  same  per- 
centage thereof  that  shareholders  outside  that  state  receive,  notwith- 
standing the  New  York  residents,  according  to  that  decision,  are  enti- 
tled to  additional  payments  from  the  funds  in  that  state?  It  has  been 
decided  by  the  United  States  Supreme  Court  that  a  judgment  in  a 
state  court  against  a  person  appointed  receiver  ancillary  to  an  ap- 
pointment by  a  court  of  another  state  binds  only  the  property  that 
is  in  his  custody  as  receiver  within  the  state  in  which  the  judgment 
is  rendered,  the  court  in  which  primary  administration  was  had  re- 
taining the  custody  of  the  remainder.  Reynolds  v.  Stockton,  140  U. 
S.  254,  11  Sup.  Ct.  773,  35  L.  Ed.  464.  In  the  opinion  jt  is  said  (140 
U.  S.  272,  11  Sup.  Ct.  778,  35  L.  Ed.  470) :  "Whatever  orders,  judg- 
ments, or  decrees  may  be  rendered  by  the  courts  of  another  state  in 
respect  to  so  much  of  the  estate  as  is  within  its  limits  must  be  accepted 
as  conclusive  in  the  courts  of  primar}^  administration;  and  whatever 
matters  are  by  the  courts  of  primary  administration'  permitted  to  be 
litigated  in  the  courts  of  another  state  come  within  the  same  rule  of 
conclusiveness.  Beyond  this  the  proceedings  of  the,  courts  of  a  state 
in  which  ancillary  administration  is  held  are  not  conclusive  upon  the 
administration  in  the  courts  of  the  state  in  which  primary  administra- 
tion is  had.  And  this  rule  is  not  changed  although  a  party  whose 
estate  is  being  administered  by  the  courts  of  one  state  permits  himself 
or  itself  to  be  made  a  party  to  the  litigation  in  the  other."  This 
court,  then,  is  bound  by  the  New  York  decision  so  far  as  it  relates  to 


750  PARTICULAR  SUBJECTS.  (Part  2 

the  property  within  the  limits  of  that  state,  and  no  further.  The  ap- 
pearance of  the  assignee  in  the  action  did  not  enlarge  its  binding  ef- 
fect here,  for  the  reason,  if  for  no  other,  that  the  issue  alleged,  heard, 
and  decided  in  the  action  related  solely  to  the  rights  of  the  parties 
in  the  property  located  in  that  state.  The  decision  as  to  the  general 
fund  was  that  all  the  creditors  of  the  corporation,  wherever  residing, 
are  entitled  to  have  it  distributed  among  them  "upon  principles  of 
perfect  equality."  Upon  this  point,  the  court  say,  citing  Blake  v.  Mc- 
Clung,  172  U.  S.  239,  19  Sup.  Ct.  165,  43  L.  Ed.  432,  in  support  of 
the  proposition:  "The  courts  of  one  state  have  no  right  to  favor 
domestic  creditors  in  the  distribution,  but  it  must  be  made  upon  the 
principle  that  equality  is  equity."  The  decision  as  to  the  special  fund 
was  that  it  was  a  trust  fund  set  apart  by  the  defendants  for  the  bene- 
fit of  the  creditors  and  shareholders  residing  in  New  York.  The  de- 
cision is  based  upon  the  provisions  of  the  local  statute,  in  compliance 
with  which  the  defendants  deposited  the  fund  with  the  superintendent 
of  banks  to  obtain  the  privilege  of  doing  business  in  the  state.  The 
court  say  that:  "By  the  act  of  the  corporation  itself  in  availing  itself 
of  the  benefit  of  the  statute  it  has  devoted  this  fund  to  the  benefit  of 
the  domestic  creditors  and  shareholders,  at  least  so  far  as  to  enable 
them  to  receive  payment  upon  all  their  obligations  in  full.  There- 
fore the  application  of  the  fund  to  their  benefit  in  the  first  instance 
does  not  infringe  upon  the  provision  of  the  federal  Constitution  that 
citizens  of  each  state  shall  be  entitled  to  all  the  privileges  and  im- 
munities of  citizens  in  the  several  states."  The  condition  imposed 
upon  the  transfer  of  the  general  fund  to  this  state  was  not  complied 
with,  and  the  fund  remains  in  the  possession  of  the  New  York  re- 
ceiver. Consequently,  the  question  before  the  court  is  not  attended 
with  complications  that  might  arise  if  the  general  fund  had  been  re- 
ceived by  the  assignee  upon  the  terms  stated  in  the  New  York  judg- 
ment. The  defendant  corporation  was  incorporated  in  this  state.  This 
was  its  corporate  home.  Creditors  and  shareholders  of  the  corpora- 
tion, when  they  became  such,  wherever  the  transaction  took  place, 
impliedly  agreed  that  in  case  of  insolvency  the  final  settlement  of  the 
corporation's  afifairs  should  be  made  in  this  state,  and  be  governed 
by  the  laws  of  the  state.  Railroad  Co.  v.  Gebhard,  109  U.  S.  527,  3 
Sup.  Ct.  363,  27  L.  Ed.  1020;  Hawkins  v.  Glenn,  131  U.  S.  319,  331, 
332,  9  Sup.  Ct.  739,  33  L.  Ed.  184.  The  provisions  of  the  statute  of 
this  state  relating  to  the  insolvency  of  an  institution  of  this  kind  (Pub. 
St.  1901,  c.  162,  §§  12-25)  form  a  complete  system  of  insolvency  law, 
under  which  the  property  of  the  institution  may  be  placed  in  the  cus- 
tody of  the  law,  converted  into  money,  and  divided  among  its  creditors, 
and  the  corporation  be  practically  dissolved.  In  a  case  decided  at 
this  term  (Bank  Com'rs  v.  Security  Trust  Co.,  70  N.  H.  536,  49  Atl. 
113)  it  was  held  that  the  Legislature  intended  that  the  bankruptcy 
rule,  so  called,  should  apply  in  the  proof  of  secured  claims  in  a  pro- 
ceeding under  these  provisions;    that  is,  that  such  a  creditor  should 


Ch.  5)  FOREIGN  ad:ministrations.  751 

be  allowed  to  prove  only  the  balance  of  his  claims  above  the  value 
of  his  securities.  Applying  this  principle  to  the  case  in  hand,  and  giv- 
ing the  decision  in  People  v.  State  Provident  Ass'n,  161  N.  Y.  492, 
55  N.  E.  1053,  full  effect,  it  follows  that  the  creditors  and  sharehold- 
ers residing  in  New  York  are  entitled  to  prove  in  this  proceeding  only 
the  balances  of  their  claims  above  the  payments  to  which  they  are 
entitled  under  the  New  York  decision.  This  would  have  been  the 
result  if  they  had  resided  in  this  state,  and  the  special  fund  had  been 
pledged  to  them  collectively  as  security  for  the  payment  of  their 
respective  claims.  It  is  said  by  the  New  York  court  that  the  trans- 
action by  which  the  fund  was  lodged  with  the  superintendent  of 
banks  was  "something  more  than  a  mere  deposit  as  security" ;  that 
it  was  "in  the  nature  of  a  fund  held  in  trust  for  the  benefit  of  domes- 
tic creditors  and  shareholders."  Stating  the  proposition  in  another 
form,  the  interest  of  the  New  York  creditors  and  shareholders  in  the 
fund  is  in  the  nature  of  the  interest  of  .cestuis  que  trustent  in  a  trust 
fund  created — First,  to  pay  those  of  them  who  are  creditors  simply 
their  claims  in  full  or  proportionately;  second,  to  pay  from  the  bal- 
ance, if  any,  those  who  are  shareholders  their  claims  in  full  or  pro- 
portionately; and,  third,  to  pay  the  ultimate  balance,  if  any,  to  the 
assignee.  The  fact  that  the  transaction  creating  the  rights  of  the 
creditors  and  shareholders  was  in  the  form  of  a  trust,  instead  of  a 
pledge,  does  not  make  the  rule  above  mentioned  any  the  less  ap- 
plicable to  it.  The  object  was  security,  and  the  difference  is  one  of 
words,  rather  than  substance.  In  either  case  the  creditors  and  share- 
holders have  the  right  to  have  the  fund  set  apart  by  the  defendants 
for  their  benefit  appropriated  accordingly.  The  insolvency  proceeding 
creates  the  necessity  for  a  settlement  of  the  trust,  the  same  as  for  the 
settlement  of  pledges.  The  event  upon  the  happening  of  which  the 
trust  was  to  be  executed  has  arrived,  namely,  inability  of  the  de- 
fendants to  pay  their  obligations  in  full.  Under  these  circumstances 
the  statutes  of  this  state  require  the  New  York  creditors,  in  common 
with  all  other  secured  creditors,  domestic  and  foreign,  to  apply  the 
value  of  their  securities  to  their  claims,  and  prove  for  the  balance. 
They  have  the  right  to  prove  the  claims  here,  but  they  must  prove 
them  as  they  are;  that  is,  as  secured  claims.  Goodall  v.  IMarshall, 
11  N.  H.  88,  35  Am.  Dec.  472;  Loomis  v.  Farnum,  14  N.  H.  119. 
When  creditors  offer  their  claims  for  proof,  the  law  of  this  state  says 
to  all  alike,  "Make  the  proper  allowance  for  your  securities,  and  the 
balance  will  be  allowed."  If  dii^culties  may  arise  in  some  cases  in 
determining  the  value  of  securities,  there  is  none  in  this  case.  The 
securities  have  been  converted  into  cash,  and  the  cash  is  in  the  cus- 
tody of  the  New  York  receiver.  Creditors  have  presented  claims 
there  amounting  to  nearly  $117,000.  There  is  about  $69,000  in  the 
possession  of  the  New  York  receiver,  which  must  be  applied  towards 
the  payment  of  the  claims  there,  since  the  receiver,  under  the  direc- 
tion of  the  court,  declines  to  send  the  money  to  the  assignee.     This 


752  PARTICULAR  SUBJECTS.  (Part  2 

money  is  applicable  in  the  first  instance  to  the  payment  of  debts.  So 
applying  it,  there  will  be  a  balance  of  some  $48,000  of  the  New  York 
debts  unpaid,  and  for  the  payment  of  this  balance  the  special  fund 
is  security.  This  fund  is  sufficient  to  pay  the  balance  and  leave  about 
$52,000  for  payment  of  shareholders^  claims,  leaving  a  balance  of 
about  $148,000,  or  74  per  cent,  of  those  claims  unprovided  for  if  those 
claims  are  provable  at  their  par  value.  These  figures  are  used  merely 
by  way  of  illustration.  The  facts  are  not  definitely  stated  in  the  case, 
and  must  be 'determined  at  the  trial  term.  The  point  is  that  the  bal- 
ances of  the  shareholders'  claims,  whatever  they  may  be,  are  provable 
in  this  proceeding,  and  upon  them  the  owners  are  entitled  to  share  in 
the  distribution  of  the  funds  under  the  control  of  this  court,  in  com- 
mon with  all  other  shareholders,  domestic  and  foreign. 

2.  There  is  a  special  fund  in  New  Jersey,  but  the  facts  in  relation 
to  it  are  not  reported.  If  what  has  been  said  regarding  the  New  York 
fund  does  not  dispose  of  the  questions  pertaining  to  the  New  Jersey 
fund,  the  latter  must  be  considered  upon  a  new  case. 

3.  Another  question  reserved  relates  to  the  rights  of  unsecured 
shareholders  who  reside,  or  have  proved  claims,  in  states  where  there 
are  ancillary  receivers,  who  have  not  transferred  the  money  in  their 
possession  to  the  assignee  for  distribution.  The  statute  provides  that 
the  remainder  of  the  proceeds  of  the  property,  after  the  payment  of 
the  expenses  of  the  assignment  and  the  "debts,  claims,  and  obliga- 
tions owing  by  the  institution,"  shall  be  "divided  among  the  stock- 
holders according  to  their  interests."  Pub.  St.  1901,  c.  162,  §  20. 
The  principle  that  "equity  is  equality"  is  here  recognized.  The  di- 
vision contemplated  is  one  made  "upon  principles  of  perfect  equality." 
Blake  v.  McClung,  172  U.  S.  239,  19  Sup.  Ct.  165,  43  L.  Ed.  432. 
The  statute  makes  no  distinction  on  account  of  the  residence  of  share- 
holders. It  regards  all  alike,  wherever  they  reside.  Their  interests 
are  represented  by  the  amounts  of  their  claims  as  allowed  in  the  pro- 
ceeding. Each  shareholder,  whether  domestic  or  foreign,  is  enti- 
tled to  receive  the  same  percentage  upon  his  claim  as  every  other 
shareholder  receives.  Such  a  division  could  be  more  conveniently 
made  if  all  ancillary  receivers  would  transfer  their  funds  to  the  as- 
signee. It  would  be  a  simple  problem  to  determine  what  percentage 
the  single  fund  thus  formed  would  be  of  the  amount  of  all  the  claims, 
and  to  distribute  the  fund  accordingly.  In  view  of  the  certainty  of 
such  division  and  the  convenience  of  this  method  of  making  it,  it 
seems  probable  that  all  ancillary  receivers,  acting  under  the  direc- 
tion of  the  courts  appointing  them,  will  forward  their  funds  to  the 
assignee.  The  case  is  eminently  one  that  requires  the  co-operation 
of  all  courts  which  have  jurisdiction  of  any  of  the  funds;  in  order 
to  attain  the  object  desired  by  all  with  the  least  delay  and  expense, 
and  the  least  liability  to  error.  If,  however,  the  funds  in  any  state 
are  withheld  for  any  reason  from  the  assignee,  the  court  here  will 
be  obliged  to  undertake  the  difficult  task  of  securing  indirectly  equality 


Ch.  o)  FOREIGN  ADMINISTRATIONS.  753 

in  the  distribution.  Goodall  v.  Marshall,  11  N.  H.  88,  101,  35  Am. 
Dec.  473.  In  that  case  it  will  be  necessary  to  ascertain  what  share- 
holders receive,  or  are  entitled  to  receive,  dividends  in  the  other  states, 
and  the  amount  of  such  dividends.  If  the  receiver  in  any  state  re- 
tains the  funds  in  his  possession,  and  they  are  sufficient  in  amount 
to  pay  the  shareholders  who  have  proved  their  claims  in  the  state  a 
larger  percentage  than  shareholders  generally  will  be  entitled  to  under 
the  distribution  to  be  made  here,  such  foreign  shareholders  will  not 
be  entitled  to  any  portion  of  the  funds  here.  For  example,  if  the 
percentage  to  which  shareholders  generally  will  be  entitled  proves  to 
be  30,  and  certain  shareholders  will  receive  35,  per  cent,  from  one  or 
more  ancillary  receivers,  they  will  be  entitled  to  nothing  in  this  pro- 
ceeding. If  they  receive  only  25  per  cent.,  they  will  be  entitled  to 
receive  here  an  additional  5  per  cent.  The  remarks  of  the  court  in  a 
recent  English  case  upon  a  kindred  question  are  pertinent  in  this 
connection.  The  court  said:  "No  doubt,  in  a  case  in  which  French 
assets  were  distributed  so  as  to  give  French  creditors  as  such  priority, 
in  distributing  the  English  assets  the  court  would  be  astute  to  equal- 
ize the  payments,  and  take  care  that  no  French  creditors  should  com(^ 
in  and  receive  anything  till  the  English  creditors  had  been  paid  a  pro- 
portionate amount.  But,  subject  to  that,  which  is  for  the  purpose  of 
doing  what  is  equal  and  just  to  all  the  creditors,  I  know  of  no  law 
under  which  the  English  creditors  are  to  be  preferred  to  foreigners." 
In  re  Kloebe,  28  Ch.  Div.  175,  177.  See,  also,  Blake  v.  McClung,  172 
U.  S.  239,  257,  19  Sup.  Ct.  165,  43  L.  Ed.  432.     Case  discharged.^^ 

3  2  Under  the  present  national  bankruptcy  act  it  is  provided  that  "whenever 
a  person  shall  have  been  adjudged  a  bankrupt  by  a  court  without  the  United 
States  and  also  by  a  court  of  bankruptcy,  creditors  residing  within  the  United 
States  shall  first  be  paid  a  dividend -equal  to  that  received  in  the  court  without 
the  United  States  by  other  creditors  before  creditors  who  have  received  a 
dividend  in  such  courts  shall  be  paid  any  amounts."  Bankr.  Act  July  1,  1S98, 
e.  541,  §  65d,  30  Stat.  563  (U.  S.  Comp.  St.  1901,  p.  344S). 

Whether  an  ancillary  receiver  will  remit  the  local  assets  in  full  to  the  prin- 
cipal receiver,  or  only  the  balance  left  after  payment  of  the  claims  proved  in 
the  ancillarv  proceedinss,  is  dependent  upon  the  discretion  of  the  court  ap- 
pointing him.  Sands  v.^E.  S.  Greeley  &  Co.,  88  Fed.  130,  31  C.  C.  A.  424  (1S9S). 
For  the  protection  of  domestic  creditors  it  may  attach  conditions  befoi'e  it  will 
allow  a  remittance  of  the  assets.  People  v.  Granite  Provident  Association,  161 
N.  Y.  492,  .55  N.  E.  1053  (1900). 

As  to  appointment  of  ancillary  receivers,  see  Irwin  v.  Granite  State  Provi- 
dent Association,  56  N.  J.  Eq.  244,  38  Atl.  680  (1897). 

See,  in  general,  6  Am.  St.  Rep.  185-189 ;    23  L.  R.  A.  52-57. 

CoNTiNKNTAL  LAW— a.  In  General. — The  doctrine  of  the  extraterritorial  ef- 
fect or  universality  of  bankruptcy  proceedings  is  not  carried  through  consist- 
ently in  any  jurisdiction.  Jurisdiction  has  been  entertained  with  respect  to 
foreigners  or  foreign  corporations  whose  principal  place  of  business  was  in 
another  country  where  bankruptcy  proceedinss  w^ere  pending.  App.  Paris, 
Nov.  10,  1886 ;  App.  Nancv,  July  12,  1887  (S.  1890,  2,  187) ;  App.  Paris,  March 
7,  1878  (S.  1879,  2,  164).  tinder  the  facts  of  the  second  case  an  Italian  court, 
on  the  other  hand,  declined  to  take  jurisdiction  and  gave  effect  to  the  foreign 
judgment  by  means  of  an  exequatur.  App.  Milan,  Dec.  15,  1876  (S.  1879,  2, 
161),  and  note  by  E.  Dubois. 

b.  Franee. — If  an  exequatur  has  been  obtained  for  the  foreign  decree  of 
bankruptcy,  it  will  in  general  have  the  same  effect  as  would  attach  to  it  un- 
LoE.CoNF.L. — 48 


754  PARTICULAR  SUBJECTS.  (Part   2 

dor  the  law  of  the  foreign  state.  App.  Bordeaux,  July  8,  1891  (D.  1893,  2, 
141).  The  effect  will  attach  only  from  the  time  the  exequatur  is  granted. 
Cass.  June  26,  1905  (S.  1905,  1,-  433),  and  note  by  Ch.  Lyon-Caen ;  App.  Paris, 
Nov.  14,  1901  (29  Clunet,  110).  An  exequatur  will  make  a  foreign  composi- 
tion binding — even  upon  French  creditors  who  voted  against  it.  Cass.  July 
21,  1903  (S.  1903,  1,  449),  and  note  by  Ch.  Lyon-Caen. 

It  has  been  held  that,  by  virtue  of  article  14  of  the  Civil  Code,  French  cred- 
itors and  such  foreign  creditors  as  have  established  an  authorized  domicile 
in  France  may  attach  the  local  assets  and  thereby  prevent  their  removal. 
They  will  be  entitled,  however,  only  to  the  dividend  declared  under  the  for- 
eign bankruptcy  proceedings.  App.  Paris,  Aug.  13.  1875  (4  Clunet,  40).  See, 
also,  Cass.  Nov.  12,  1872  (S.  1873,  3,  17);  App.  Aix,  March  15,  1870  (S.  1870, 
2,  97). 

In  the  absence  of  an  exequatur,  effect  will  be  given  to  the  foreign  decree 
under  which  the  trustee  was  appointed  to  the  extent  of  recognizing  the  au- 
thority of  the  trustee  to  represent  the  creditors  of  the  bankrupt.  App.  Paris, 
March  23,  1869  (S.  1869,  2,  172) ;  App.  Paris,  Feb.  22,  1872  (S.  1872,  2,  90) ; 
App.  Paris,  Dec.  14,  1875  (S.  1876,  2,  70).  Such  right  ceases  with  the  appoint- 
ment of  a  trustee  in  France.    App.  Orleans,  March  27,  1885  (12  Clunet,  178). 

An  exequatur  is  required,  of  course,  for  all  acts  of  execution,  and  it  has 
been  held  to  be  necessary,  also,  to  give  effect  to  the  foreign  decree  of  bank- 
ruptcy as  contradistinguished  from  the  decree  appointing  the  trustee.  Cass. 
June  26,  1905  (S.  1905,  1,  433),  and  note  by  Ch.  Lyon-Caen.  See,  also,  App. 
Paris,  Jan.  9,  1907  (34  Clunet,  742). 

No  exequatur  will  be  granted  to  a  foreign  decree  of  bankruptcy  if  bank- 
ruptcy proceedings  are  pending  also  in  France.  App.  Paris,  March  7,  1878  (S. 
1879,  2,  164),  and  note  by  E.  Dubois. 

Where  bankruptcy  proceedings  are  pending  both  in  France  and  in  another 
country,  according  to  App.  Nancy,  July  12,  1887  (S.  1890,  2,  187),  the  estate  of 
the  bankrupt  will  be  divided  into  two  distinct  masses ;  each  creditor  being  al- 
lowed to  prove  his  claim  only  in  the  country  where  he  gave  credit  to  the  bank- 
rupt. In  App.  Montpellier,  June  12,  1884  (12  Clunet,  82),  on  the  other  hand,  a 
creditor  was  held  entitled  to  prove  his  claim  in  both  jurisdictions  on  the  condi- 
tion, however,  that  he  surrender  the  dividends  received  under  the  foreign 
bankruptcy  proceedings. 

c.  Italy. — The  courts  are  divided  as  to  whether  effect  should  be  given  to  a 
foreign  decree  of  bankruptcy  with  respect  to  property  in  Italy.  In  favor  of 
the  principle  of  universality:  App.  Milan,  Dec.  6,  1876  (Annali  1877,  3,  47) ; 
App.  Milan,  Dec.  15,  1876  (S.  1879,  2,  161),  and  note  by  E.  Dubois ;  App.  Rome, 
June  15,  1892  (Annali  1883,  3,  253).  Contra:  App.  Genoa,  Oct.  23,  1891  (An- 
nali 1892,  3,  15)  ;  App.  Genoa,  March  25,  1892  (Monitore  1892,  p.  491) ;  App. 
Genoa,  March  15,  1906  (21  Autran,  812).  To  the  effect  that  it  does  not  em- 
brace real  estate  in  Italy,  see  Cass.  Turin,  April  29,  1871  (Annali  1871,  1, 
173). 

A  foreign  trustee  will  be  recognized  as  the  representative  of  the  bankrupt  es- 
tate, and  he  may  sue  as  such,  without  the  need  of  an  exequatur  for  the  de- 
cree appointing  him,  as  long  as  no  acts  of  execution  are  in  question.  Cass. 
Turin,  Dec.  22,  1884  (Annali  1885,  1,  360) ;  App.  Brescia,  Aug.  1,  1871  (Annali 
1871,  2,  575) ;  App.  Milan,  Dec.  15,  1876  (S.  1879,  2,  161). 

As  under  the  continental  law  a  decree  of  bankruptcy  vests  only  the  power  of 
disposition  in  the  trustee,  title  to  the  property  remaining  in  the  bankrupt,  the 
bankrupt  may  dispose  of  his  property  until  the  granting  of  an  exequatur  for 
the  foreign  decree.  Cass.  Turin,  April  13,  1867  (Annali  1867,  1,  215);  Cass. 
Turin.  April  29,  1871  (Annali  1871,  1,  173). 

d.  Germany. — As  to  jurisdiction  over  foreigners,  see  section  238,  par.  2,  Bank- 
ruptcy Law  of  1898. 

Bankruptcy  proceedings  in  Germany  will  not  embrace  property  situated  in 
other  countries,  if  the  bankrupt  had  a  commercial  establishment  but  not  a 
residence  or  domicile,  in  Germany.  Section  238,  par.  1,  Bankruptcy  Law. 
But  as  a  rule  German  bankruptcy  proceedings  will  include  the  property  of 
the  bankrupt  in  other  countries.  Section  1,  Bankruptcy  Law;  10  R.  G.  61 
(July  6,  1886).  Nevertheless,  if  a  creditor  under  the  law  of  the  state  where 
the  property  is  situated  is  allowed  to  attach  the  property,  notwithstanding  the 


Ch.  5)  FOREIGN  ADMINISTRATIONS.  755 

foreign  proceedings  In  bankruptcy,  he  may  retain  the  advantage  so  obtained. 
54  R.  G.  193  (March  28.  1903). 

Foreign  creditors  may  come  in  upon  the  same  terms  as  domestic  creditors. 
Section  5,  Bankruptcy  Law. 

Under  section  237  of  the  Bankruptcy  Law,  the  property  of  a  bankrupt  may 
be  attached  in  Germany  notwithstanding  the  bankruptcy  proceedings  abroad. 
Nor  can  an  exequatur  be  obtained  for  the  foreign  decree,  since  such  a  decree 
is  not  regarded  as  a  judgment  in  the  sense  of  section  328,  Code  Civ.  Proc.  To 
this  rule,  by  virtue  of  paragraph  2,  §  237,  of  the  Bankruptcy  Law,  an  excep- 
tion may  be  established  by  the  Imperial  Chancellor  with  the  assent  of  the 
Federal  Council.  A  foreign  composition  requiring  confirmation  by  the  bank- 
ruptcy court  will  therefore  be  of  no  effect  with  respect  to  the  debtor's  prop- 
erty in  Germany ;  and  this  is  true,  although  the  attaching  creditor  has  par- 
ticipated in  the  bankruptcy  proceedings  and  has  voted,  perhaps,  for  the  dis- 
charge. O.  L.  G.  Dusseldorf.  Nov.  26,  1891  (4  Niemeyer,  359).  See,  also,  21 
R.  G.  7  (March  20,  1888) ;  15  R.  O.  H.  G.  8  (Nov.  7,  1874). 

See,  in  general,  F.  P.  Contuzzi,  Die  internationalen  Wirkungen  des  Kon- 
kurses,  betrachtet  vom  Standpunkte  des  italienischen  Rechts  und  der  Rechts- 
sprechung,  2  Niemeyer,  441-446 ;  F.  P.  Contuzzi.  De  la  necessity  d'assurer  aux 
strangers  le  meme  traitement  qu'aux  nationaux  dans  la  repartition  des  pro- 
duits  de  la  faillite,  19  Clunet,  110.5-1119;  K.  Cramming,  Die  Wirkungen  des 
ausliindischen  Konkurses  auf  das  Inland  nach  deutschem  Reichsrecht,  5 
Niemeyer,  344-363 ;  P.  Pic,  De  la  faillite  et  de  la  liquidation  judiciaire  des 
societes  commerciales  en  droit  international  prive.  19  Clunet,  577-612. 

See,  also.  Draft  of  Contention  signed  at  the  Hague  July  17,  1905.  (Ap- 
pendix A,  IV.) 


APPENDIX. 


CONVENTIONS  OF  THE  HAGUE,    RELATING  TO 
CONFLICT  OF  LAWS. 

A.  CONVENTIONS  OF  JUNE  12,  1902.* 

I.  MARRIAGa 

Article  1.  The  right  of  contracting  marriage  shall  be  governed  by  the  na- 
tional law  of  each  of  the  parties  intending  to  marry,  unless  a  provision  of 
such  law  refers  expressly  to  some  other  law. 

Art.  2.  The  law  of  the  place  of  celebration  may  prohibit  a  marriage  of  for- 
eigners, if  it  would  be  contrary  to  its  provisions  concerning: 

1.  Degrees  of  consanguinity  or  affinity  with  respect  to  which  there  is  an 
absolute  prohibition. 

2.  An  absolute  prohibition  on  marriage  imposed  upon  parties  guilty  of  adul- 
tery for  which  the  marriage  of  one  of  them  has  been  dissolved. 

3.  An  absolute  prohibition  to  intermarry,  imposed  upon  persons  convicted 

iThese  Conventions  were  signed  by  and  are  actually  in  force  in  France,  Ger- 
many, Italy,  and  a  number  of  other  European  powers. 

The  Drafts  of  Conventions  printed  under  "Appendix  B"  were  likewise  signed 
by  France,  Germany,  Italy,  and  other  European  powers,  but  are  as  yet  law  only 
in  part.  Germany  ratified  those  relating  to  Matrimonial  Px-operty  and  Inter- 
diction (see  Appendix  B.  II  &  III)  INIay  7,  1908.  The  draft  relating  to  Bank- 
ruptcy, contrary  to  the  others,  is  not  a  draft  for  a  general  Convention,  but  is  in- 
tended to  serve  merely  as  the  basis  for  Conventions  that  may  be  concluded  between 
the  individual  states. 

Consult,  in  regard  to  the  above  Conventions  and  the  Drafts  of  Conventions, 
Actes  de  la  Conference  de  la  Haye  chargee  de  reglementer  diverses  matieres  de 
Droit  International  PrivS,  La  Haye,  1893.  1894.  1900,  1904;  Deutsche  Denkschrift 
zu  den  Haager  Konventionen  von  1905  (18  Niemeyer,  .578-606)  ;  Bogeng,  Die  Haa- 
ger  Abkommen  iiber  Internationales  Privat-  und  Zivilrecht,  1908;  Buzzati,  Tra- 
tado  di  diritto  iuternazionale  private  secondo  le  convenzioni  dell'  Aja,  vol.  I,  Intro- 
duzione,  II  matrimonio,  1908 ;  Contuzzi,  Cbmmentaire  th^orique  et  pratique  des 
Conventions  de  la  Haye  concernant  la  codification  du  droit  international  privo, 
vol.  I,  1904.  Kahn,  Die  dritte  Haager  Staatenkonferenz  fiir  Internationales 
Privatrecht.  12  Niemeyer,  1-21,  201-261,  385-437;  Lain^.  La  Conference  de. 
la  Haye  relative  an  Droit  International  Prive  (1st  session)  21  Clunet,  5-25,  236- 
255;  (2d  session)  22  Clunet,  465-484,  734-751;  (3d  session)  28  Clunet.  5-35. 
231-253,  918-935;  (4th  session)  32  Clunet,  797-815,  33  Clunet,  5-26,  278-301. 
976-994,  34  Clunet.  897-921;  Missir,  La  Quatrieme  Conference  de  Droit  In- 
ternational de  la  Haye,  (1)  Projet  d'une  convention  concernant  les  confiits  de 
lois  relatifs  aux  eft'ets  du  mariage  sur  les  droits  et  les  devoirs  des  6poux  dans 
leurs  rapports  personnels  et  sur  les  biens  des  6poux,  2  Darras,  49-65 ;  (2)  Le 
projet  de  convention  concernant  les  conflits  de  lois  en  matiftre  de  successions 
et  de  testaments,  2  Darras,  644-658.  874-893  ;  Pierantoui.  II  diritto  civile  e  la 
procedura  iuternazionale   codificati   nelle   convenzioni   dell'   Aja,   1906. 

See,  also,  De  I'etat  actuel  des  divers  traitfe  de  la  Haye  en  matifere  de  droit  in- 
ternational prive,  4  Darras,  509-549. 

The  original  of  the  Conventions  of  June  12,  1902,  may  be  found  in  81  Clunet, 
748-750,  752-754,  756-757,  and  in  1  Darras,  215-223. 

The  original  of  the  Draft  of  Conventions,  signed  at  the  Hague  July  17,  1905, 
may  be  found  in  1  Darras,  789-801. 

LOK.CONF.L.  (757) 


758  APPENDIX. 

of  having  conspired  against  the  life  of  the  husband  or  wife  of  one  of  the  par- 
ties. 

A  marriage  celebrated  contrary  to  one  of  the  prohibitions  above  mention- 
ed shall  not  be  void,  provided  it  would  be  valid  according  to  the  law  refer- 
red to  in  article  1. 

Subject  to  the  application  of  the  first  paragraph  of  article  6  of  the  present 
Convention,  none  of  the  contracting  powers  bind  themselves  to  authorize  the 
celebration  of  a  marriage,  which,  by  reason  of  a  prior  marriage  or  an  obsta- 
cle of  a  religious  nature,  would  contravene  its  laws.  The  violation  of  an  im- 
pediment of  this  nature  shall  not  render  such  a  marriage  void  in  countries 
other  than  the  one  in  which  it  was  celebrated. 

Art.  3.  The  law  of  the  place  of  celebratidn  may  permit  the  marriage  of 
foreigners  notwithstanding  a  prohibition  contained  in  the  law  mentioned  in. 
article  1,  when  the  prohibitions  are  based  exclusively  upon  considerations  of 
a  religious  nature. 

The  other  powers  may  refuse  to  recognize  the  validity  of  a  marriage  per- 
formed under  these  circumstances. 

Art.  4.  Foreigners,  desiring  to  marry,  must  prove  that  they  fulfil  the  con- 
ditions required  by  the  law  referred  to  in  article  1. 

This  proof  may  consist  either  of  a  certificate  from  a  diplomatic  or  consu- 
lar agent  authorized  by  the  country  to  which  the  contracting  parties  belong, 
or  of  any  other  evidence,  which  is  regarded  as  sufficient  by  international  trea- 
ty or  the  authorities  of  the  country  of  celebration. 

Art.  5.  A  marriage  performed  in  accordance  with  the  law  of  the  place  of 
celebration,  shall  be,  as  regards  its  form,  considered  everywhere  as  valid. 

It  is  understood,  however,  that  countries  whose  law  requii-es  a  i-eligious  cer- 
emony may  decline  to  consider  as  valid  marriages  entered  into  by  their  sub- 
jects abroad  without  observing  such  requirement. 

The  provisions  of  the  national  law  with  respect  to  publication  must  be  ob- 
served, but  the  omission  of  such  publication  shall  not  render  the  marriage  void 
in  countries  other  than  the  one  whose  law  has  been  violated. 

An  authentic  copy  of  the  act  of  marriage  shall  be  sent  to  the  authorities 
of  the  country  of  each  of  the  parties. 

Art.  6.  A  marriage  entered  into  before  a  diplomatic  or  consular  agent  in 
conformity  with  the  law  of  his  country  shall  be  regarded  everywhere  as  val- 
id, as  regards  its  form,  provided  neither  of  the  contracting  parties  is  a  sub- 
ject of  the  power  where  the  marriage  has  been  celebrated  and  provided  such 
pov,-er  does  not  object  to  it.  It  cannot  object  in  the  case  of  a  marriage  which 
by  reason  of  a  prior  marriage  or  an  obstacle  of  a  religious  nature  would  con- 
travene its  laws. 

The  reservation  contained  in  the  second  paragraph  of  article  5,  is  applica- 
ble to  diplomatic  and  consular  marriages. 

Art.  7.  A  marriage,  void  as  regards  form  in  the  country  where  it  was  cel- 
ebrated, may  nevertheless  be  considered  valid  in  the  other  countries,  if  the 
form  prescribed  by  the  national  law  of  each  of  the  parties  has  been  observed. 

Art.  8.  The  present  Convention  applies  only  to  marriages  celeln-ated  with- 
in the  territory  of  the  contracting  powers  between  persons  of  whom  one  at 
least  is  a  subject  of  one  of  such  powers. 

None  of  the  poAvers  obligates  itself  by  the  present  Convention  to  apply  a 
law  which  is  not  that  of  one  of  the  contracting  powers. 

[Articles  9-12  have  been  omitted.]2 

2. The  omitted  articles  of  this  Convention  and  of  the  succeeding  Conventions 
or  Draft  of  Conventions  relate  to  their  ratification,  application,  duration,  etc. 


CONVENTIONS   OF    THE    HAGUE. 


II.  DIVORCE  AND  SEPARATION. 

Article  1.  Married  persons  may  apply  for  divorce  ouly  if  botli  tlie  nation- 
al law  and  the  law  where  such  application  is  made  admit  of  divorce. 

This  applies  also  to  separation. 

Art.  2.  A  divorce  may  be  granted  only  for  grounds  admitted  by  both  the 
national  law  of  the  parties  and  the  law  of  the  place  where  the  application 
is  made. 

This  applies  also  to  separation. 

Art.  3.  Notwithstanding  the  provisions  of  articles  1  and  2,  the  national 
law  shall  be  exclusively  observed,  if  the  law  of  the  place  where  the  applica- 
tion is  made  so  directs  or  authorizes. 

Art.  4.  The  national  law  referred  to  in  the  preceding  articles  may  not  be 
invoked  where  it  would  render  a  fact  which  occurred  when  the  parties  or 
either  of  them  had  another  nationality  a  ground  for  divorce  or  separation. 

Art.  5.     An  application  for  divorce  or  separation  may  be  made: 

1.  In  the  jurisdiction  competent  under  the  national  law  of  the  parties. 

2.  In  a  jurisdiction  competent  according  to  the  law  of  the  place  where  the 
parties  are  domiciled. 

Where,  according  to  their  national  law,  the  parties  do  not  have  the  same 
domicile,  the  competent  jurisdiction  shall  be  that  of  defendant's  domicile.  In 
case  of  desertion  or  of  a  change  of  domicile  after  the  cause  for  divorce  or 
separation  arose,  the  application  may  also  be  made  in  the  competent  juris- 
diction of  the  last  common  domicile ;  provided,  however,  that  the  national 
jurisdiction  shall  be  reserved  to  the  extent  that  it  is  exclusively  competent 
for  an  application  for  divorce  or  separation.  The  foreign  jurisdiction  remains 
competent  for  a  marriage  which  is  not  subject  to  divorce  or  separation  in  the 
competent  national  jurisdiction. 

Art.  6.  Where  the  parties  are  not  authorized  to  apply  for  divorce  or  sep- 
aration in  the  country  where  they  are  domiciled,  either  of  them  may  never- 
theless apply  to  a  competent  jurisdiction  of  that  country  for  such  provision- 
al relief  as  its  law  may  provide  in  the  case  of  a  cessation  of  the  life  in  com- 
mon. Such  relief  shall  be  continued  if  confirmed  within  a  year  by  the  na- 
tional jurisdiction ;  it  shall  not  continue  longer  than  the  law  of  their  domicile 
permits. 

Art.  7.  A  divorce  or  separation  decreed  by  a  court  competent  according 
to  the  terms  of  article  5,  shall  be  recognized  everywhere,  provided  the  pro- 
visions of  the  present  Convention  have  been  observed,  and,  provided  the  de- 
fendant has  been  cited  in  accordance  with  the  special  provisions  of  his  na- 
tional law  for  the  recognition  of  foreign  judgments,  if  the  decree  has  been 
rendered  by  default. 

'  A  divorce  or  separation  decreed  by  an  administrative  jurisdiction  shall  like- 
wise be  recognized  everywhere,  if  the  law  of  each  of  the  parties  recognizes 
such  a  divorce  or  separation. 

Art.  8.  If  the  parties  have  not  the  same  nationality,  the  law  last  common 
to  them  shall  be  considered  as  the  national  law  in  the  application  of  the  pre- 
ceding articles. 

Art.  9.  The  present  Convention  applies  only  to  applications  for  divorce  or 
separation  made  in  one  of  the  contracting  powers  if  at  least  one  of  the  par- 
ties is  a  subject  of  one  of  such  powers. 

No  power  shall  be  bound  by  the  present  Convention  to  apply  a  law  which 
is  not  that  of  one  of  the  contracting  powers. 

[Articles  10-13  have  been  omitted.] 


760  APPENDIX. 


III.  GUARDIANSHIP. 

Article  1.  The  guardianship  of  a  minor  shall  be  regulated  by  his  nation- 
al law. 

Art.  2.  If  the  national  law  does  not  constitute  a  guardianship  in  the  coun- 
try of  the  minor  where  the  latter  has  his  permanent  residence  abroad,  the 
diplomatic  or  consular  agent  authorized  by  the  law  of  the  state  of  which  the 
minor  is  a  subject  may  do  so  in  conformity  with  the  laws  of  that  state,  pro- 
vided the  state  of  the  permanent  residence  of  the  minor  does  not  oppose  it. 

Art.  3.  The  guai'dianship  of  a  minor  having  his  permanent  residence 
abroad,  shall  be  instituted  and  administered,  however,  in  conformity  with  the 
law  of  that  place,  if  it  is  not  or  cannot  be  constituted  pursuant  to  the  provi- 
sions of  article  1  or  of  article  2. 

Art.  4.  The  existence  of  a  guardianship  created  pursuant  to  the  provisions 
of  article  3,  shall  not  prevent  the  instituting  of  a  new  guardianship  under 
article  1  or  article  2. 

Information  of  such  fact  shall  be  given  as  soon  as  possible  to  the  govern- 
ment of  the  state  where  the  guardianship  was  first  created.  Such  government 
shall  then  inform  the  authority  which  instituted  the  guardianship,  or  if  such 
an  authority  does  not  exist,  the  guardian  himself. 

The  law  of  the  state  where  the  guardianship  was  originally  created  shall 
decide  at  what  moment  such  guardianship  ceases  in  the  case  referred  to  in 
this  article. 

Art.  5.  The  guardianship  shall  in  every  case  begin  and  end  at  the  time  and 
for  the  causes  determined  by  the  national  law  of  the  minor. 

Art.  6.  The  administration  by  the  guardian  shall  extend  to  the  person  and 
over  all  the  property  of  the  minor,  wherever  its  situation. 

Immovables  subjected  by  the  law  of  their  situs  to  a  special  regime  applica- 
ble to  land  may  be  excepted  from  this  rule. 

Art.  7.  Pending  the  creation  of  a  guardianship,  as  well  as  in  all  cases  of 
urgency,  measures  necessary  for  the  protection  of  the  person  and  interests  of 
a  foreign  minor  may  be  taken  by  the  local  authorities. 

Art.  8.  The  authorities  of  the  state  within  whose  territory  there  is  a  for- 
eign minor  for  whom  it  is  necessary  to  create  a  guardianship,  shall  inform 
the  authorities  of  the  state  of  which  the  minor  is  a  subject  of  this  situation 
as  soon  as  it  is  known  to  them. 

The  authorities  so  notified  shall  at  the  earliest  moment  indicate  to  the  au- 
thorities giving  such  notice  whether  a  guardianship  has  been  or  will  be  cre- 
ated. 

Art.  9.  The  present  Convention  shall  apply  only  to  the  guardianship  of  mi- 
nors who  are  subjects  of  one  of  the  contracting  powers,  and  have  their  per- 
manent residence  within  the  territory  of  one  of  such  powers. 

Articles  7  and  8  of  the  present  Convention,  however,  shall  apply  to  all  mi- 
nors who  are  subjects  of  one  of  the  contracting  powers. 

[Articles  10-13  have  been  omitted.] 


B.  DRAFT  OF  CONVENTIONS  SIGNED  AT  THE  HAGUE, 

JULY  17,  1905. 

I.  SUCCESSIONS  AND  WILLS. 

Article  1.  Successions,  as  regards  the  designation  of  the  persons  capable 
of  inheriting,  the  order  in  which  and  the  shares  in  the  succession  to  which 
they  are  entitled,  the  collations,  the  portion  of  property  which  can  be  dispos- 
ed of  and  the  reserve,  are  governed  by  the  national  law  of  the  deceased,  what- 
ever the  nature  of  the  property  or  the  country  in  which  it  is  situated. 


CONVENTIONS  OF  THE  HAGUE.  761 

The  same  rule  applies  to  the  intrinsic  validity  and  to  the  effect  of  testa- 
mentary dispositions. 

Art.  2.  The  property  of  a  deceased  person  shall  not  escheat  to  the  state 
in  which  it  is  found  except  when,  under  the  national  law  of  the  deceased, 
there  is  either  no  party  entitled  to  it  under  a  will,  or  there  is  no  party,  save 
the  foreign  state,  entitled  to  it  ab  intestato. 

Art.  3.  Wills  are  valid,  as  regards  form,  if  they  conform  either  with  the 
law  of  the  place  where  they  are  execuVod  or  with  the  law  of  the  country  of 
which  the  deceased  was  a  subject  at  the  time  of  their  execution. 

However,  if  the  national  law  of  a  person  prescribes  or  prohibits  a  certain 
form  for  a  will  executed  outside  of  his  country,  a  failure  to  comply  with  such 
provision  may  render  the  will  void  in  the  country  of  which  the  testator  was 
a  subject ;  provided  that  if  the  will  conforms  to  the  law  of  the  place  where 
it  was  executed,  it  shall  be  valid  in  the  other  countries. 

Wills  of  foreigners  shall  be  valid,  as  regards  form,  if  they  have  been  re- 
ceived, in  conformity  with  their  national  law,  by  duly  authorized  diplomatic 
or  consular  agents  of  the  state  of  which  such  foreigners  were  subjects. 

Art.  4.  The  provisions  of  article  1,  par.  2,  and  of  article  3.  relating  to  tes- 
tamentary dispositions,  shall  be  applicable  also  to  the  revocation  of  such  dis- 
positions. 

Art.  5.  The  authorities  of  a  state  within  whose  territory  property  belong- 
ing to  the  succession  is  found,  may  take  all  necessary  measures  to  insure  its 
preservation,  unless,  under  special  Conventions,  the  matter  is  attended  to  by 
duly  autlaorized  diplomatic  or  consular  agents  of  the  state  of  which  the  de- 
ceased was  a  subject. 

Art.  6,  §  1.  The  right  is  reserved  to  apply  such  territorial  laws  as  are  ex- 
clusively designed  to  prevent  the  subdivision  of  rural  property  and  such  laws 
as  relate  to  immovables  placed  under  a  special  regime  applicable  to  land. 

§  2.  There  is  likewise  reserved  to  each  state  the  right  to  apply  such  laws 
of  the  state  as  possess  an  imperative  or  prohibitive  character  and  relate  to 
matters  to  be  indicated  by  the  contracting  powers  by  common  agreement  in 
an  additional  protocol  which  it  is  intended  shall  be  ratified  at  the  same  time 
as  the  present  Convention. 

§  3.  Each  government,  in  order  to  avail  itself  of  the  reservation  contain- 
ed in  the  preceding  paragraphs,  shall  furnish  to  the  government  of  the  Neth- 
erlands a  list  of  such  provisions  of  its  laws  as  shall  be  applicable,  by  way 
of  exception  to  the  rules  of  the  present  Convention,  to  all  successions,  includ- 
ing those  of  persons  who  are  subjects  of  the  other  contracting  powers.  Such 
list  may  be  modified  within  the  limits  marked  out  in  the  preceding  paragraphs 
In  accordance  with  the  wishes  of  each  government  which  shall  notify  the 
Dutch  government  likewise  of  such  change.  This  government  shall  transmit 
the  notifications  in  question  through  diplomatic  channels  to  the  contracting 
powers  indicating  the  date  when  such  notifications  were  received. 

§  4.  The  reservations  made  by  a  state  under  the  foi'egoing  provisions  shall 
apply  only  to  the  succession  of  subjects  of  the  other  contracting  powers  which 
shall  become  open  60  days  after  such  notification  to  the  Dutch  government. 

§  5.  The  provisions  of  the  foregoing  paragraphs  shall  not  authorize  a  con- 
tracting power  to  exempt  from  the  operation  of  the  national  law  of  the  de- 
ceased immovables  not  comprised  within  those  mentioned  in  paragraph  1,  nor 
to  defeat  the  application  of  article  7. 

Art.  7.  Foreigners  belonging  to  one  of  the  contracting  powers  shall  be  com- 
pletely assimilated  with  the  subjects  of  such  country  in  regard  to  all  matters 
mentioned  in  article  1.  Those  provisions,  therefore,  will  have  no  application 
between  the  contracting  powers  which  create  in  favor  of  the  subjects  of  such 
country  rights  of  preference  in  the  property  situated  within  its  territory, 
whose  effect  w^ould  be  indirectly  to  modify  the  rules  prescribed  by  the  pres- 
ent Convention. 


7G2  APPENDIX, 

Such  rights  of  preference,  on  the  other  hand,  shall  be  enforced  by  way  of 
set-off  if,  as  a  result  of  the  restrictions  made  in  the  application  of  the  law 
of  the  deceased,  subjects  of  one  state  are  deprived  with  respect  to  property 
situated  within  the  territory  of  another  state,  of  the  benefit,  in  full  or  in 
part,  which  they  would  have  had  in  accordance  with  the  national  law  of  the 
deceased.  * 

Art.  8.  The  contracting  powers  shall  by  common  agreement  establish  rules 
concerning  jurisdiction  and  procedure  in  matters  of  succession  and  wills  as 
soon  as  may  be  possible  after  the  signing  of  the  present  Convention. 

The  Convention  containing  such  provisions  shall  be  ratified  at  the  same 
time  as  the  present  Convention. 

Art.  9.  The  present  Convention  shall  apply  only  where  the  deceased  at  the 
time  of  his  death  was  a  subject  of  one  of  the  contracting  powers. 

Each  contracting  power  reserves  the  right  to  conclude  special  Conventions 
with  a  noncontracting  power,  in  which  the  succession  of  persons  who  are  sub- 
jects of  such  country  may  be  subjected  to  a  law  other  than  the  national  law. 

If  the  present  Convention  is  found  to  be  incompatible,  in  whole  or  in  part, 
with  a  special  Convention  of  this  kind,  the  latter  shall  apply  between  the 
powers  that  have  concluded  it,  without  reference  to  the  present  Convention. 
In  such  a  case  the  other  contracting  powers  may,  on  the  other  hand,  decline 
to  enforce  the  present  Convention  to  the  extent  that  it  is  excluded  by  the  spe- 
cial Convention. 

[Articles  10-14  have  been  omitted.] 


II.  THE  EFFECT  OF  MARRIAGE  UPON  THE  RIGHTS  AND  DUTIES  OF 

MARRIED  PERSONS  IN  THEIR  PERSONAL  RELATIONS  AND 

UPON  THEIR  PROPERTY. 

Article  1,  The  rights  and  duties  of  married  persons  in  their  personal  rela- 
tions shall  be  governed  by  their  national  law. 

Such  rights  and  duties  can  be  enforced,  however,  only  with  the  means  which 
are  sanctioned  also  by  the  law  of  the  country  in  which  they  are  to  be  en- 
forced. 

Art.  2.  In  the  absence  of  contract  the  effect  of  a  marriage  upon  the  prop- 
erty of  married  persons,  immovable  as  well  as  movable,  shall  be  governed  by 
the  national  law  of  the  husband  at  the  time  of  the  celebration  of  the  mar- 
riage. 

A  change  of  nationality  by  the  husband  and  wife  or  by  either  of  them  shall 
have  no  effect  upon  the  property  regime. 

Art.  3.  The  capacity  of  each  of  the  future  spouses  to  enter  into  a  marriage 
contract  is  determined  by  his  or  her  national  law  at  the  time  of  the  celebra- 
tion of  the  marriage. 

Art.  4.  The  national  law  of  husband  and  wife  decides  whether  during  the 
marriage  they  can  enter  into  a  marriage  contract  or  whether  they  can  rescind 
or  modify  their  marriage  contract. 

No  change  in  the  property  regime  can  have  retroactive  effect  to  the  prej- 
udice of  third  parties. 

Art.  5.  The  intrinsic  validity  of  a  marriage  contract  and  its  effects  are  gov- 
erned by  the  national  law  of  the  husband  at  the  time  of  the  celebration  of  the 
marriage,  and,  if  such  a  contract  was  made  during  the  marriage,  by  the  na- 
tional law  of  the  husband  and  Mife  at  the  time  of  the  making  of  such  contract. 

The  same  law  determines  whether,  and  if  so  to  what  extent,  a  husband  and 
wife  have  the  power  to  refer  to  another  law.  If  they  have  so  referred,  such 
law  shall  determine  the  effect  of  the  marriage  contract. 

Art.  6.  The  marriage  contract  is  valid,  as  regards  form,  if  it  was  made  in 
conformity  with  either  the  law  of  the  place  where  it  was  executed,  or  with 
the  national  law  of  each  of  the  future  spouses  at  the  time  of  the  celebration 


CONVENTIONS   OF   THE    HAGUE.  703 

of  the  marriage,  or  again,  if  it  was  executed  during  the  marriage  in  accord- 
ance with  the  national  law  of  each  of  the  parties. 

If  the  national  law  of  either  of  the  future  spouses,  or,  if  the  contract  was 
executed  during  the  marriage,  the  national  law  of  either  husband  or  wife 
requires  as  a  condition  of  its  validity  a  certain  form  notwithstanding  such 
contract  was  executed  in  a  foreign  country,  such  provision  must  be  observed. 

Art.  7.  The  provisions  of  the  present  Convention  are  inapplicable  to  im- 
movables which,  by  the  law  of  their  situs,  are  placed  under  a  special  regime 
applicable  to  land. 

Art.  8.     Each  of  the  contracting  powers  reserves  the  right: 

1.  To  require  special  formalities  before  a  property  regime  is  allowed  to 
operate  against  third  parties. 

2.  To  apply  measures  having  for  their  object  the  protection  of  third  parties 
in  their  relations  with  married  women  engaged  in  business  within  the  terri- 
tory of  such  power. 

The  contracting  powers  agree  that  they  will  communicate  to  one  another 
the  rules  applicable  according  to  the  present  article. 

Art.  9.  If  husband  and  wife  have  acquired  the  same  new  nationality  during 
their  marriage  such  a  new  national  law  shall  apply  in  the  cases  mentioned  in 
articles  1,  4  and  5. 

If  it  should  happen  that  during  the  marriage  husband  and  wife  have  not 
the  same  nationality,  the  last  law  common  to  both  shall  be  regarded  as  their 
national  law  in  the  application  of  the  preceding  articles. 

Art.  10.  The  present  Convention  does  not  apply  if  the  law  applicable  un- 
der the  preceding  articles  would  be  that  of  a  noncontractiug  power. 

[Articles  11-15  have  been  omitted.] 


III.  INTERDICTION   AND    SIMILAR   MEASURES. 

Article  1.  Interdiction  is  governed  by  the  national  law  of  the  person  to  be 
interdicted,  subject  to  the  exceptions  established  in  the  following  articles. 

Art.  2.  Interdiction  can  be  pronounced  only  by  the  competent  authorities 
of  the  state  to  which  the  person  to  be  interdicted  belongs  by  nationality  and 
the  guardianship  shall  be  created  in  accordance  with  the  law  of  such  state  ex- 
cept in  the  cases  mentioned  in  the  following  articles. 

Art.  3.  If  a  subject  of  another  state  is  found  in  the  territory  of  one  of  the 
contracting  powers  under  circumstances  requiring  interdiction  according  to 
his  national  law,  the  local  authorities  may  take  all  provisional  measures  re- 
quired for  the  protection  of  his  person  or  property. 

Notice  thereof  shall  be  given  to  the  government  of  the  state  of  which  he 
is  a  subject. 

These  measures  shall  cease  as  soon  as  the  local  authorities  receive  notice 
from  the  national  authorities  that  provisional  measures  have  been  taken  or 
that  the  condition  of  the  person  in  question  has  been  determined  by  judicial 
decree. 

Art.  4.  The  authorities  of  the  state  within  whose  territory  a  foreigner  re- 
quiring interdiction  has  his  permanent  residence  shall,  as  soon  as  it  has  be- 
come known  to  them,  notify  the  authorities  of  the  state  of  which  the  foreigner 
is  a  subject,  of  this  situation  informing  them  of  any  application  for  intei'dic- 
tion  pending  before  them  and  of  such  provisional  measures  as  may  have  been 
taken. 

Art.  5.  The  notice  mentioned  in  articles  3  and  4  shall  be  given  through 
diplomatic  channels,  unless  direct  communication  between  the  respective  au- 
thorities is  authorized. 

Art.  6.  The  country  in  which  the  person  to  be  interdicted  has  his  permanent 
residence  shall  delay  all  definitive  measures  so  long  as  the  national  authorities 


764  APPENDIX. 

have  not  replied  to  tlie  notice  referred  to  in  article  4.  If  the  national  authori- 
ties declare  that  they  desire  to  abstain,  or  if  they  do  not  reply  within  six 
months,  the  authorities  of  the  permanent  residence  shall  hear  the  application 
for  interdiction  taking  into  consideration  the  objections  which,  according  to 
the  reply  received  from  the  national  authorities,  would  prevent  the  interdiction 
in  the  country  of  origin. 

Art.  7.  Where  the  authorities  of  the  permanent  residence  are  competent  by 
virtue  of  the  preceding  article  the  application  for  interdiction  may  be  made 
by  the  persons  and  upon  the  ground  admitted  by  both  the  national  law  and 
the  law  of  the  residence  of  the  foreigner. 

Art.  8.  If  interdiction  has  been  pronounced  by  the  authorities  of  the  per- 
manent residence,  the  guardianship  of  the  person  and  property  of  the  party 
interdicted  shall  be  organized  in  accordance  with  the  local  law,  and  the  effect 
of  the  interdiction  shall  be  governed  by  the  same  law. 

If  the  national  law  of  the  person  interdicted  provides,  however,  that  a  cer- 
tain person  shall  be  entitled  as  of  right  to  the  guardianship  such  provision 
shall  as  far  as  possible  be  observed. 

Art.  9.  The  interdiction  pronounced  by  the  competent  authorities  in  con- 
formity with  the  foregoing  rules  shall,  as  far  as  the  capacity  of  the  person 
interdicted  and  his  guardianship  are  concerned,  produce  its  effects  in  all  of 
the  contracting  powers,  without  the  need  of  an  exequatur. 

Measures  of  publicity,  prescribed  by  the  local  law  for  interdictions  pro- 
nounced by  the  authorities  of  such  country,  may  be  made  equally  applicable, 
however,  to  interdictions  pronounced  by  a  foreign  authority,  or  similar  pro- 
visions may  be  substituted  therefor.  The  contracting  powers  agree  that  they 
will  communicate  to  one  another,  through  the  medium  of  the  Dutch  govern- 
ment, the  dispositions  they  may  have  taken  in  this  regard. 

Art.  10.  The  existence  of  a  guardianship  created  in  accordance  with  article 
8  shall  not  prevent  the  creation  of  a  new  guardianship  in  conformity  with  the 
national  law. 

Notice  thereof  shall  be  given  as  soon  as  possible  to  the  authorities  of  the 
state  where  the  interdiction  was  pronounced. 

The  law  of  this  state  shall  determine  at  what  time  the  guardianship  there 
created  shall  cease.  From  this  moment  the  effect  of  the  interdiction  pro- 
nounced by  the  foreign  authorities  shall  be  governed  by  the  national  law  of 
the  person  interdicted. 

Art.  11.  The  interdiction  pronounced  by  the  authorities  of  the  permanent 
residence  may  be  raised  by  the  national  authorities  in  conformity  with  their 
law. 

The  local  authorities  which  have  pronounced  the  interdiction  may  raise  it 
likewise  upon  all  grounds  recognized  by  the  national  law  or  by  the  local  law. 
The  application  may  be  made  by  all  authorized  thereto  by  one  or  the  other  of 
these  laws.  The  decree  raising  the  interdiction  shall  produce  its  effect  ipso 
facto,  without  the  need  of  an  exequatur,  in  all  of  the  contracting  powers. 

Art.  12.  The  preceding  provisions  shall  apply  to  the  movable  and  immovable 
property  of  the  incompetent  person,  alike,  save  immovable  property  placed  by 
the  law  of  their  situs  under  a  special  regime  applicable  to  land. 

Art.  13.  The  rules  contained  in  the  present  Convention  shall  apply  equally 
to  interdiction  properly  so  called,  to  the  creation  of  a  guardianship  for  prop- 
erty, to  the  appointment  of  a  judicial  counsel  and  to  all  other  similar  measures 
resulting  in  a  restriction  of  capacity. 

Art.  14.  The  present  Convention  shall  apply  only  to  the  interdiction  of  per- 
sons who  are  subjects  of  one  of  the  contracting  powers  and  have  their  perma- 
nent residence  within  the  territory  of  one  of  those  powers. 

Article  3  of  the  present  Convention,  however,  applies  to  all  subjects  of  the 
contracting  powers. 

[Articles  15-19  have  been  omitted.] 


CONVENTIONS  OF  THE   HAGUE.  765 


IV.  BANKRUPTCY. 

Article  1.  The  declaration  of  bankruptcy  of  a  merchant,  pronounced  in  one 
of  the  contracting  powers  by  the  authority  competent  to  article  2,  shall  be 
recognized  and  shall  produce  its  effect  in  the  other  contracting  powers  in  the 
measure  and  to  the  extent  established  by  the  following  articles. 

Art.  2.  The  authority  exclusively  competent  to  pronounce  a  declaration  of 
bankruptcy  is  that  of  the  country  in  which  the  debtor  has  his  principal  com- 
mercial establishment. 

The  authority  exclusively  competent  with  respect  to  a  partnership  or  cor- 
poration (soci4t§)  is  that  of  the  country  in  which  it  has  its  principal  place  of 
business,  provided  that  it  be  neither  fraudulent  nor  fictitious. 

Art.  3.  If  the  bankruptcy  declared  in  one  of  the  contracting  powers  em- 
brace a  branch  or  establishment  in  another,  the  formalities  of  publicity  pre- 
scribed by  the  legislation  of  the  latter  state  must  be  fulfilled  by  the  syndic  or 
trustee  at  the  place  where  such  branch  or  establishment  is  located,  without 
prejudice,  however,  to  conservatory  measures  or  measures  of  administration 
mentioned  in  article  5. 

Art.  4.  The  appointment  and  the  powers  of  the  trustees  in  bankruptcy,  the 
procedure  to  be  followed,  the  admission  of  creditors,  the  formation  of  a  com- 
position and  the  distribution  of  assets  among  the  creditors  shall  be  governed 
by  the  law  of  the  place  where  the  bankruptcy  has  been  declared! 

Art.  5.  Foreign  creditors  who  are  subjects  of  one  of  the  contracting  powers 
shall  be  completely  assimilated  with  the  national  creditors. 

Art.  6.  The  syndic,  trustee,  or  other  administrator  in  bankruptcy,  duly  ap- 
pointed in  accordance  with  the  law  of  the  place  where  the  bankruptcy  has  been 
declared,  may,  without  the  need  of  a  preliminary  exequatur,  take  all  steps  or 
measures  necessary  for  the  preservation  or  administration  of  the  bankrupt 
estate.  He  may  likewise  sue  or  be  sued  as  the  representative  of  the  bankrupt 
or  of  the  bankrupt  estate. 

But  he  can  proceed  to  acts  of  execution  only  if  the  decree  under  which  he 
acts  has  been  provided  with  an  exequatur  in  accordance  with  the  law  of  the 
country  in  which  such  acts  are  to  take  place. 

Art.  7.    The  exequatur  shall  be  granted  if  the  applicant  proves: 

1.  That  the  bankruptcy  has  been  declared  by  an  authority  competent  ac- 
cording to  article  2, 

2.  That  the  decree  has  executory  force  in  the  state  where  it  was  rendered. 

3.  That  the  copy  produced  contains  all  the  conditions  which  are  necessary 
for  its  authenticity  under  the  laws  of  such  state. 

4.  That  the  debtor  has  been  duly  cited,  that  he  appeared  or  defaulted. 
Art.  8.    The  procedure  with  respect  to  the  exequatur  is  governed  by  the  law 

of  the  state  where  the  application  is  made. 

'  An  exequatur  may  be  sought  not  only  by  the  administrator  of  the  bankrupt, 
but  also  by  any  person  entitled  to  make  such  application  under  the  law  of  the 
country  in  which  the  bankruptcy  was  declared. 

Art.  9.  A  composition,  effected  subsequent  to  the  declaration  of  bankruptcy, 
shall  produce  its  effect  ipso  jure  in  all  of  the  contracting  powers,  provided  it 
was  granted  by  the  creditors  and  confirmed  by  the  competent  authority  in 
the  manner  prescribed  by  the  law  of  the  state  where  the  bankruptcy  was 
opened. 

Art.  10.  The  present  Convention  does  not  deprive  the  contracting  powers 
of  the  right  to  apply  any  measures  enacted  by  their  legislatures  for  the  pur- 
pose of  insuring  the  continuation  of  a  public  service  with  which  a  bankru[)t 
establishment  may  be  charged. 

It  is  not  applicable  either  to  enterprises  In  regard  to  which  special  legis- 
lative measures  or  regulations  have  been  made  in  the  interest  of  creditors. 


INDEX. 


[the  figures  refer  to  pages.] 


ACTION, 

form  of,  see  Procedure. 

ADMINISTRATORS, 

see  Executors  and  Administrators. 

ADMIRALTY, 

bills  of  lading,  459,  467  n. 

French,  German,  and  Italian  law,  4GS;  n. 
V  bottomry,  46S  n. 

French,  German,  and  Italian  law,  468  n. 
collisions, 

at  sea,  502,  508  n. 

French,  German,  and  Italian  law,  508  n.,  509  n. 
In  territorial  waters,  474,  508  n. 

French,  German,  and  Italian  law,  508  n. 
death  on  the  high  seas,  508  n. 
mortgage  and  sale  of  vessels,  285,  310  n.,  322  n. 
salvage,  508  n. 

see,  also.  Judgments  in  Rem. 

ADOPTION, 

jurisdiction,  571  n.,  591. 

French,  German,  and  Italian  law,  591  n. 

AGENTS, 

see  Principal  and  Agent. 

ALIMONY, 

jurisdiction  to  decree,  565  n. 

ANNULMENT  OF  MARRIAGE, 

jurisdiction,  563  n. 

ARBITRATION, 

agreements  relating  to,  394  n. 

French,  German,  and  Italian  law,  395  n. 

ASSIGNMENT, 

of  bills  and  notes,  421,  424. 
of  contracts,  329  n. 
of  debts,  324. 

French,  German,  and  Italian  law,  329  n. 
of  fund,  bill  or  check  operating  as,  344  n. 

French  law,  345  n. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS, 

constitutionality  of -discrimination  between  creditors,  322  n. 
creditors  who  can  attack,  316,  321  n.,  322  n. 
distinguished  from  involuntary  assignment,  321  n. 
validity  of, 

with  respect  to  immovables,  322  n. 

with  respect  to  movables,  316,  321  n. 

LOB.CONF.L.  C?G7) 


768  INDEX. 

IThe  figures  refer  to  pages.] 
ATTACHMENT, 

of  intangible  property,  324,  338  n. 
of  tangible  property,  291  n. 
situs  of  debts  for  purpose  of,  329,  331,  338  n. 
see,  also,  Garnishment. 

AVERAGE,  GENERAL, 
law  governing,  508  n. 

BANKING  CONTRACTS, 
law  governing,  413. 

BANKRUPTCY, 

constitutionality  of  discrimination  between  creditors,  322  n.,  747  n. 

Convention  of  the  Hague,  765. 

creditors  who  can  attack,  741,  747  n. 

discharge  of  obligations  under,  469  n. 

distinguished  from  voluntary  assignment,  741. 

dividends  received  abroad,  duty  to  account  for,  735  n.,  747  n.,  753  n. 

extra-territorial  effect,  733,  736,  741. 

French,  German,  and  Italian  law,  753-755  n. 

injunction  to  restrain  proceedings  in  another  state,  747  n. 

payment  out  of  property  abroad,  right  of  creditor  to  retain,  735  n 

BILLS  AND  NOTES, 

acceptance, 

acceptor's  contract,  420  n.,  424. 

French,  German,  and  Italian  law,  421  n. 

as  presumptive  payment  of  debt,  444  n. 

form,  262,  265,  269  n. 
accommodation,  420  n.,  421  n.,  437  n. 
assignment,  421,  424. 
attorney's  fees,  stipulations  for,  420  n. 
bona  fide  holder  for  value,  426. 
damages,  75,  348,  433  n.,  437  n. 
drawer's  contract,  427,  433  n.,  437  n.,  439. 

French,  German,  and  Italian  law,  433  n.,  445  n. 
form, 

German  law,  421  n.,  426  n. 
grace,  days  of,  444  n. 
indorsement, 

contract  of  indorser,  420,  433,  437  n.,  439. 

French,  German,  and  Italian  law,  439  n.,  445  n. 

contract  of  irregular  indorser,  341. 

form,  424. 
legality  of  consideration,  see  Contracts, 
maker's  contract,  348,  420  n. 

T-'ropr-li.  German,  and  Italian  law,  421  n. 
negotiability,  420  n.,  433  n. 
notice  OL  dishonor, 

necessity,  427,  437  n. 

sufficiency,  344  n.,  433,  438,  444  n. 
operation  of  bill  or  check  as  assignment  of  funds,  344  n. 

French  law,  345  n. 
place  of  making,  420  n. 
presentment,  demand,  and  pi'otest, 

necessity,  427,  433,  437  n. 

French,  German,  and  Italian  law,  445  n. 

sufficiency,  344  n.,  444  n. 

French,  German,  and  Italian  law.  444  n.,  445  n. 
situs  of,  for  purpose  of  administration,  715  n. 

BILLS  OF  EXCHANGE  ACT, 
English,  444  n. 


INDEX.  769 

[The  figures  refer  to  pages.] 
BILLS  OF  LADING, 
asseut  to,  59. 

exemptions  from  liability  for  negligence,  352,  367,  449,  452,  459. 
French,  German,  and  Italian  law,  468  n. 

BOTTOMRY, 

law  governing,  408  n. 

French,  German,  and  Italian-  law,  468  n. 

BURDEN  OF  PROOF, 
see  Procedure. 

CAPACITY, 

as  a  status,  218,  219,  231. 
for  rights,  219,  231,  239  n. 
foreign  artificial  incapacity,  239  n. 

I'rench  law,  239  n. 
foreign  penal   incapacity,  239  n.     '  , 

of  corporations,  246. 
of  married  women  to  charge  separate  estate,  271. 

to  release  cause  of  action  for  personal  injuries,  613  n. 
to  contract, 

infants,  51. 

French,  German,  and  Italian  law,  239,  240  n. 

married  women,  220,  223,  228,  231  n. 
to  convey  or  to  mortgage  immovables,  240,  243. 

French,  German,  and  Italian  law,  239,  240  n. 
to  make  a  marriage  contract. 

Convention  of  the  Hague,  762,  763. 

French,  German,  and  Italian  law,  623  n. 
to  make  a  will,  629,  630. 

French,  German,  and  Italian  law,  681  n. 
to  marry,  521,  523  n.,  528,  535  n. 

French,  German,  and  Italian  law,  536  n. 
to  take  property  as  heir,  distributee,  legatee,  or  devisee,  571  n.,  626,  629, 
630. 

French,  German,  and  Italian  law,  681  u. 

CARRIERS, 

authority  of  master  of  vessel,  409. 

French  and  German  law,  415  n. 
bills  of  lading, 

assent  to,  59 

exemptions  from  liability  for  negligence,  352,  367,  449,  452,  459. 
French,  German,  and  Italian  law,  467  u.,  468  n. 
liability  in  general,  350,  446,  456,  480. 

CHAMPERTY, 

law  governing,  378. 

CHATTEL  MORTGAGES. 

law  governing,  292,  301,  303,  307  n. 

CHOSES  IN  ACTION, 
see  Debts ;   Movables. 

COLLISIONS. 

at  sea,  502,  508  n. 

French,  German,  and  Italian  law,  508  n.,  509  n. 
in  territorial  waters.  474,  508  n. 

French,  German,  and  Italian  law,  508  n. 

COMITY. 

exercise  of,  4,  13,  14,  246,  252  n.,  683,  720  n.,  722,  726.  7.".3.  736,  741. 

CONFLICT  OF  LAWS, 
definition,  2. 

LoB.CoNF.L. — 49 


770  INDEX. 

[The  figures  refer  to  pages.J 
CONSIDERATIOX, 
see  Contracts. 

CONTRACTS, 

assignment,  329  n. 

capacity-  to  make,  51,  220,  223,  22S,  231  n. 

French,  German,  and  Italian  law,  239,  240  n. 
consideration, 

necessity,  361. 

legality,  87S,  379-392,  395,  397  n.,  40O  n. 
damages  for  breach,  75,  76,  78,  348,  433  n.,  437  n. 
discharge,  468  n. 
effect,  344  n. 
form,  254,  256  n.,  257,  262.  265,  269  n. 

French,  German,  and  Italian  law,  270  n. 
interpretation,  394  n. 
jurisdiction  to  enforce  foreign,  340  n. 
limitation  of  actions,  (>4. 

French,  German,  and  Italian  law,  15  n. 
nature  and  obligation,  341,  352,  355,  361,  367,  371,  373. 

French,  German,  and  Italian  law,  354,  355  n. 
nonenforcement,  375,  376,  392,  394  u,,  397,  400,  405  n,,  459,  467  n. 
particular  contracts, 

banking,  413. 

bills  and  notes,  420-445. 

French,  German,  and  Italian  law,  421  n.,  42G  n.,  433  n.,  444  n., 
445  n. 

carriers,  446-468. 

French,  German,  and  Italian  law,  4G7  n.,  4GS  n. 

guaranty  and  suret^'ship,  415-420. 
German  law,  418  n. 

insurance,  373,  392,  394  u. 

partnership,  405. 

French  and  German  law,  409  n. 

principal  and  agent,  405-415. 

French,  German,  and  Italian  law,  415  n.,  502  n.,  508  n. 

sales,  397  n. 

German  law,  354  n. 
performance, 

effect  of  prohibition,  378. 

French,  German,  and  Italian  law,  348  n. 

impossibility  of,  348  n. 

matters  relating  to,  343,  343  n.,  344,  344  n.,  345. 

nonperformance,  effect  of,  348,  350,  371. 

place  of,  343  n. 
place  of  making,  340  n. 

French,  German,  and  Italian  law,  340  n. 
validity, 

French,  German,  and  Italian  law,  354,  355  D. 

Sunday  contracts,  375.  376. 

usurious  contracts,  379-392. 
see,  also.  Consideration. 

CONVENTION  OF  BERNE, 

international  transportation  by  rail,  468  n. 

CONVENTIONS  OF  THE  HAGUE, 

bankruptcy,  765. 

divorce  and  separation,  759. 

effect  of  marriage  upon  rights  and  duties  of  married  persons  in  their 

personal  relations  and  upon   llieir  property,  762. 
Interdiction  and  similar  measures,  763. 
marriage,  757. 
succession  and  wills,  760. 


INDEX.  771 

[The  figures  refer  to  pages.] 
COPYRIGHT, 

Frencb,  German,  and  Italian  law,  501  n. 

CORPORATIONS,  FOREIGN, 

capacity  to  become  stockholder,  239  n. 
discbarge  of  obligations  in  bankruptcy,  4G9  n. 
dissolijtion  of,  jurisdiction, 

French  law,  253  n. 
French,  German,  and  Italian  law,  253  n. 
garnishment,  339  n. 

jurisdiction  over,  132,  139,  139  n.,  141  n. 
liability,  statutory,  of  directors  and  stockholders,  509  n, 
payment  of  dividends  on  shares  held  by  married  women,  345. 
powers,  252  n. 
service  upon,  141  n. 
status,  246. 

see  Stock  and  Stockholders. 

COVENANTS, 

law  governing,  281  n. 

CUSTODY  OF  CHILDREN, 
right  to,  by  guardian,  720  n. 
jurisdiction  to  award  in  divorce  proceedings,  565  n. 

DAMAGES, 

for  breach  of  contract, 

in  general,  75,  76,  78,  348. 

as  against  acceptor  of  bill  or  maker  of  note,  348. 

as  against  drawer  and  indorser  of  bill,  433  n.,  437  n. 
in  tort  actions,  81,  491,  493  n.,  497  n. 
interest  as  damages,  75,  76,  348. 

French,  German,  and  Italian  law,  348  n. 
DEATH, 

action  for  wrongful,  487,  491,  493. 

on  the  high  seas,  508  n. 

DEBTS, 

assignment,  324. 

French,  German,  and  Italian  law,  329  n. 
attachment  and  garnishment,  329,  331,  338  n. 
situs,  for  purpose  of  administration,  715  n. 
taxation,  338  n.,  339  n. 

DIRECTORS, 

statutory  liability,  509  n. 

DISCHARGE  OF  OBLIGATIONS, 

law  governing,  468  n. 

DISTRIBUTION  OF  PROPERTY  UPON  DEATH, 

see  Succession. 

DIVORCE, 

effect  upon  property  rights  of  spouses,  565  a. 

German  law,  505  n. 
grounds,  563  n. 

Convention  of  the  Hague,  759. 
French  and  German  law,  564  n. 
jurisdiction,  « 

international  and  interstate, 

in  general,  536,  541.  549,  563  n. 

character  of  ■  residence,  543  n. 
Convention  of  the  Hague,  759. 

effect  of  recital  of  jurisdictional  facts  in  decree,  99  n. 
estoppel  to  deny,  543  n. 
French,  German,  and  Italian  law,  564,  565  n. 


772  INDEX. 

[The  figures  refer  to  pages.] 

DIVORCE— Continuea, 

municipal,  540  n.,  563  n. 

domicile  of  wife,  540  n. 
Freuch,  German,  and  Italian  law,  564,  505  n. 

DOMICILE, 

American-Chinese,  !201. 

Anglo-Indian,  Anglo-Turkish,  209  n. 

area  of,  189  n. 

commercial,  189  n. 

conflict  with  national  law  as  basis  of  law,  17-30. 

French,  German,  and  Italian  law,  30  n. 
definition,  182,  183,  184,  185,  189,  190,  202. 
establishment  in  country  where  authority  of  government  necessary,  19, 

592. 
French,  German,  and  Italian  law,  217  n. 
French  "authorized  domicile,"  217  n. 
national  or  domestic,  200  u. 
of  choice,  ~ 

abandonment  of,  reverter  of  domicile  of  origin,  194,  198. 

burden  of  proof,  189,  192  n. 

freedom  of  choice,  192. 

intention,  176. 

evidence,  176,  189,  192. 

presence,  184,  189  n. 
of  dependent  persons, 

infants,  216  n. 

effect  of  marriage,  216  n. 
power  of  guardian,  216  n. 

insane  persons,  217  n. 

married   women,   210. 

capacity  to  acquire  independent  domicile,  210,  216  n.,  540  n. 
of  origin,  176,  192  n.,  195. 

place  of,  where  boundary  line  passes  through  dwelling  house,  189  n. 
residence  equivalent  to  domicile,  194  n. 
reverter  of  domicile  of  origin,  194,  198. 

EVIDENCE, 

see  Procedure. 

EXECUTORS  AND  ADMINISTRATORS, 

ancillary   administration,   where   granted.    715   n. 

jurisdiction  to  deci'ee  allowance  to  widow  of  nonresident,  715  n. 
appointment  of  administrator,  715  n. 

disposition  of  surplus  after  payment  of  debts,  707,  711  n. 
exoneration  of  realty  out  of  personalty,  707. 
Freuch,  German,  and  Italian  law,  716  n. 

land,    authority   of    ancillary    administrator    to   sell,    714    n. 
liability,  697  n.,  714  u. 
order  of  payment  of  debts,  714  n, 
power  over  assets, 

dutv  to  collect  assets  abroad,  697  n. 

transfer  of  assets,  698,  704,  704  n. 
privity  between  re])resentatives,  684,  688  n. 
proof  of  claims,  714  n. 

rights  of  creditors,  where  estate  insolvent,  711. 
situs  of  debts  for  purpose  of  administration,  ?15  n. 
suits  by  and  against.  tiS;?,  689,  691,  695  n. 

action  for  wrongful  death,  487,  490  a. 

French  law,  716  n. 
voluntary  payment  to  foreign,  695. 

EXEMPTIONS, 
see  Procedure. 


INDEX.  773 

[The  figures  refer  to  pages.] 
FOREIGN  LAW, 
proof,  51. 

French,  German,  and  Italian  law,  51i  a. 
presumptions,  52  u. 

FOIUI, 

of  acceptance  of  bills,  2G2,  2G5,  269  n. 

German  law,  421  u.,  426  n. 
of  action,  see  Procedure, 
of  contracts,  254,  256  n.,  262,  265,  269  n. 

French,  German,  and  Italian  law,  270  n. 
of  contracts  relating  to  land,  257. 

French,  German,  and  Italian  law,  270  n. 
of  deeds  and  mortgages,  269. 

French,  German,  and  Italian  law,  270  n. 
Of  marriage,  510,  513  n. 

Convention  of  the  Hague,  758. 

French,  German,  and  Italian  law,  521  n.,  535  n.,  536  n. 
of  marriage  contracts. 

Convention  of  the  Hague,  762,  763. 

French  law,  623  n. 
of  wills,  629  n.,  630. 

Convention  of  the  Hague,  6S1  n. 

French.  German,  and  Italian  law,  681  n. 
statute  of  frauds,  254-262. 

GARNISHMENT, 

jurisdiction,  329-338. 

GIFTS, 

between  husband  and  wife, 

German  law,  624. 
formalities, 

French  law,  270  n. 

GIFTS  CAUSA  MORTIS, 
law  governing,  292  n. 

French  and  German  law,  292  n. 

GRACE,  DAYS  OF, 

law  governing,  444  n. 

GUARANTY, 

law   governing,   418. 

GUARDIAN  AND  WARD, 

jurisdiction  to  appoint,  721  n. 

Convention  of  the  Hague,  760,  763,  764. 

French,  German,  and  Italian  law,  721  n. 
liability  of  guardian,  716. 
majority  of  ward,  231. 
power  to  change  domicile  of  ward,  216  n. 
rights  with  respect  to  property  of  ward,  720  n. 

Convention  of  the  Hague,  760. 

French  and  Italian  law,  721  u. 
rights  with  respect  to  custody  of  ward,  720  n. 

Convention  of  the  Hague,  760. 

French  and  Italian  law.  721  n. 
suits  by  and  against,  716.  720  n. 

French  and  Italian  law,  721  n. 

HUSBAND  AND  WIFE. 

French,  German,  and  Italian  law,  024  n. 
gifts  between, 

German  law,  624. 
marriage  contracts,  613,  622.  1 


774  INDEX. 

[The  figures  refer  to  pages.] 
HUSBAND  AND  WIFE— Continued, 
maxTied  women, 

domicile,  210,  216  n.,  540  n. 
capacity  to  charge  separate  estate,  271. 
to  contract,  220,  223,  228,  231  n. 

to  release  cause  of  action  for  personal  injuries,  613  n. 
matrimonial  property,  592-G13. 

payment  to  husband  as  discharge  of  wife's  debts,  345. 
personal  relations,  622  n. 

Convention  of  the  Hague,  7G2. 

IMMOVABLES, 

assignment  for  benefit  of  creditors,  322  n. 

capacity  of  married  women  to  charge  separate  estate,  271. 

capacity  to  contract  with  reference  to,  27G. 

French,  German,  and  Italian  law,  240  n.,  245  n. 
capacity  to  convey  or  mortgage.  240,  243. 

French,  German,  and  Italian  law,  240  n.,  245  n. 
contracts  relating  to,  257.  275  n.,  276. 

French,  German,  and  Italian  law,  239  n.,  240  n.,  245  n. 
covenants  in  a  deed.  281  n. 
deeds,  validity  and  interpretation,  274  n. 

French,  German,  and  Italian  law,  281  n. 
devolution  of,  upon  death,  578,  587,  628. 

Convention  of  the  Hague,  760. 

French,  German,  and  Italian  law,  680  n.,  6S1  n. 
divorce,  effect  upon,  565  n. 

German  law,  565  n. 
equitable  conversion  into  personalty,  630  n. 
formalities, 

of  deed  or  mortgage,  269. 

French,  German,  and  Italian  law,  270  n. 

statute  of  frauds,  257,  262  n. 

French,  German,  and  Italian  law,  270  n. 
jurisdiction  as  to  foreign,  105-117. 
marriage,  effect  of  upon,  598. 

Convention  of  the  Hague,  762. 

French,  German,  and  Italian  law,  623  n.,  624  n. 
mechanics'  liens,  281  n. 
mortgage,  validity  and  interpretation,  274. 

French,  German,  and  Italian  law,  281  n. 
trespass  upon  foreign,  501  n. 
what  are,  271  n. 

French,  German,  and  Italian  law,  281  n. 
wills,  626-630. 

Convention  of  the  Hague,  761. 

French,  German,  and  Italian  law,  681  n.,  682  n. 

INFANTS, 

adoption,  571  n.,  591. 

French,  German  and  Italian  law,  591  n. 
capacity  to  contract,  51. 

French,  German  and  Italian  law,  239-240  n. 
custody, 

domicile,  216  n. 

French  and  Italian  law,  565  n. 
guardian,  rights  of  with  respect  to  ward,  7.20  n. 

French  and  Italian  law,  721  n. 
legitimacy,  .540  n.,  566,  571,  57(5,  578,  583. 

French,  German,  and  Italian  law,  591  n. 
parents,  rights  and  duties  toward,  622  u.,  623  n. 

French,  German,  and  Italian  law,  624  n. 

INHABITANCY, 

equivalent  to  domicile,  194  n. 


\ 
\ 


INDEX.  775 

[The  figures  refer  to  pages.] 
INSANE  PERSONS, 

Convention  of  the  Hague,  7Gi». 
domicile.  217  n. 
guardiausliip,  720-721  n. 

French,  German,  and  Italian  law,  721  n. 

INSOLVENCY, 

see  Banki'uptcy. 

INSTITUTE  OF  INTERNATIONAL  LAW, 

resolution  in  regard  to  matrimonial  property,  624  n. 
in  regard  to  renvoi,  30  u. 

INSURANCE. 

assignment  of  policy,  329  n. 

contracts  of,  373.  392.  394  n. 

situs  of  policy,  for  the  purpose  of  administration,  715  n. 

INTEREST, 

as  damages,  75,  76,  348. 

French,  German,  and  Italian  law,  34S  n. 
contractual.  3.50  n. 

French,  German,  and  Italian  law,  348  n. 
on  judgments,  76  n. 
usurious,  379-392. 

INTERNATIONAL  PUBLIC  ORDER, 

definition,  14  n. 

INTERPRETATION,  ' 
of  contracts,  394  n. 
of  deeds  and  mortgages,  274. 

French,  German,  and  Italian  law,  281  n. 
of  marriage  contracts,  613,  617. 
of  wills.  637,  639,  639  n.,  642,  659  n. 

French.  German,  and  Italian  law,  681  n..  682  n. 
of  wills  under  power  of  appointment,  672,  677. 


JUDGMENTS,  FOREIGN, 

conclusiveness,  170. 

French,  German,  and  Italian  law,  175  n. 
effect, 

as  a  new  cause  of  action,  156. 

German  law,  167  n. 
as  merger  of  original  cause  of  action,  168,  170  n. 

German  law,  170  n. 
upon  property,  105  n. 
enforcement, 
defenses, 

dormancy,  90  n. 

fraud,  142-152,  152  n. 

French,  German,  and  Italian  law,  95  n.,  167,  108  n. 

irregularity  of  procedure,  90. 

judgment  not  final  for  fixed  sum,  89. 

pendency  of  appeal,  86. 
mistake  in  regard  to  lex  fori,  152. 
penal  cause  of  action,  l.o2. 
statute  of  limitations,  62. 
\\-ant  of  jurisdiction,  95-141. 

recital  of  jurisdictional  facts.  99  n. 
want  of  reciprocity,  156. 
mode,  156. 

French,  German,  and  Italian  law,  167  n. 
In  personam  and  in  rem,  99,  291  n. 
interest,  76  n. 


776  INDEX. 

[The  figures  refer  to  pages.] 

JUDGMENTS,  FOREIGN— Contiuued, 
obligation. 

French  law,  168  n. 
priorities,  G4. 

JUDICIAL  SEPARATION, 
see  Divorce. 

JURISDICTION,  < 

in  personam, 

agreement  to  submit  to  jurisdiction, 

express.  120. 

under  power  to  confess  judgment,  126. 

French  and  Italian  law,  95  n. 

implied,  122,  132,  139,  139  n. 
personal  service  within  jurisdiction,  117. 
personal  service  without  jurisdiction,  120  n. 

English   law,  120  n. 

French,  German,  and  Italian  law,  95  n.,  131  n. 
possession  of  property  within  jurisdiction.  111  u. 
when  defendant  a  citizen  of  the  forum,  131  u. 
in  rem  or  quasi  in  rem, 
in  general,  291  n. 
adoption,  591  n. 

French,  German,  and  Italian  law,  591  n. 
annulment  of  marriage,  563  n. 
bankruptcy,  733,  736,  741. 

French,  German,  and  Italian  law,  753-755.  n. 
dissolution  of  corporations, 

French  law,  253  n. 
divorce,  536,  541,  .549,  563  n. 

Convention  of  the  Hague,  757. 

French,  German,  and  Italian  law,  564,  565  n. 
garnishment,  329-338. 
legitimation,  566,  571,  576,  578,  583. 

French,  German,  and  Italian  law,  591  n. 
probate,  563  n. 

proceedings  relating  to  foreign  land;  105-117. 
recital  of  jurisdictional  facts  in  decree,  99  n.,  680  n. 
municipal, 

discretion  of  judge  to  decline  jurisdiction,  131  n. 

French,  German  and  Italian  law,  131  n. 

in  garnishment  proceedings,, 338  n. 

in  probate  proceedings,  563  n. 

injunction  against  bringing  of  suit  in  another  jurisdiction,  131  n. 

jurisdiction  on  the  high  seas,  131  n. 

territorial  jurisdiction  of  nations,  131  n. 

to  annul  marriage,  563  n. 

to  appoint  administrator,  715  u. 

to  appoint  guardian,  721  n. 

French,  German,  and  Italian  law,  721  n. 
to  decree  divorce,  540  n.,  563  n. 

French,  German,  and  Italian  law,  564,  565  n. 

LAND, 

see  Immovables. 

LEASEHOLDS, 

law  governing,  271  n. 

LEGITIMACY, 

as  depending  upon  marriage  and  divorce,  .540  n. 
by  subsequent  marriage  of  parents,  566,  578,  583. 

right  to  inherit  real  estate,  .578. 
Frencli,  German,  and  Italian  law,  591  n. 
other  modes  of  legitimation  than  by  subsequent  marriage,  571.  57G. 


INDEX.  7<  ( 

[The  figures  refer  to  pages.] 
LIENS, 

maritime,  ."in  n. 

meclaanies',  281  n. 

of  child  upou  proiiortj-  of  parent, 

French  law,  ()l'4  u. 
of  corporations  upon  shares  of  stock,  323  n. 
of  ward  upon  property  of  guardian, 

French  law,  721  n. 
of  wife  upon  proi)orty  of  husliand, 

French  law,  (J23  n. 
vendor's,  397  n. 

see  Chattel  Mortgages;    Mortgages. 

LIMITATION  OF  ACTIONS, 

French,  German,  and  Italian  law,  85  n. 
with  respect  to  foreign  .iudgnients,  62. 
with  respect  to  movables,  (JO. 
with  respect  to  obligations,  64,  08,  69. 
for  wrongful  death,  71. 

LIS  PENDENS, 
doctrine  of,  86. 

French,  German,  and  Italian  law,  89  n. 

MARRIAGE, 

before  consular  and  diplomatic  agents,  513  n. 

Convention  of  the  Hague,  758. 
capacity  to  contra'ct,  521. 

Convention  of  the  Hague,  757. 

evasion  of  law  of  domicile,  521.  528.  535  n. 

French,  German,  and  Italian  law,  536  n. 

prohibition  to  remarry,  521,  528. 
*    while  divorce  decree  incomplete,  523  n. 
consent  of  parents,  514  n. 

French,  German,  and  Italian  law,  521  n. 
effect  upon  property  of  spouses.  592-013. 

Convention  of  the  Hague,  702. 

French,  German,  and  Italian  law,  623,  624  n. 
effect  upon  domicile  of  wife,  210. 
essentials,  521,  535  n. 

French,  German,  and  Italian  law,  536  n. 
evasion  of  law  of  domicile,  521. 

French  law,  534  n. 
formalities,  510,  513  n. 

Convention  of  the  Hague,  75S. 

French.  German,  and  Italian  law,  535,  536  n. 
Indian,  535  n. 

infants"  capacity  to  acquire  independent  domicile  upon,  216  n. 
jurisdiction  to  annul,  563  u. 
nonrecognition, 

incestuous  marriages,  523,  524,  524  n. 

polygamous  marriages,  523,  535  n. 
on  the  high  seas,  513  n. 
putative,  536  n. 
revocation  of  wills  by,  647. 

MARRIAGE  CONTRACTS, 

Convention  of  the  Hague,  702-763. 
French,  German,  and  Italian  law,  023  n. 
Interpretation  and  validity,  013,  017,  622  n. 

MARRIED  WOMEN, 

capacity, 

to  charge  separate  estate,  271. 

to  contract,  220,  223.  228,  231  n. 

to  release  cause  of  action  for  personal  injuries,  013  n. 


778  INDEX. 

[The  figures  refer  to  pages.] 
MARRIED  WOMEN— Continued, 
domicile,  210,  216  n.,  540  n. 
payment  to  husband  as  disclaarge  of  wife's  debt,  345. 

MASTER  AND  SERVANT, 

implied  authority  of  shipmaster,  409. 

French,  German,  and  Italian  law,  415  n.' 
liability  of  master  for  torts  of  servants,  502,  .508  n. 

French,  German,  and  Italian  law,  502  n.,  508,  509  n. 

MATRI]\IONIAL  PROPERTY, 

in  absence  of  marriage  contract,  592-613. 
iu  general,  610. 
in  immovables,  598. 

Convention  of  the  Hague,  702,  703. 
French.  German,  and  Italian  law,  623,  624  n. 
in  movables,  592. 

change  of  domicile,  594,  602. 

Convention  of  the  Hague,  262,  263. 
French,  German,  and  Italian  law,  623,  624  n. 
rights  under  community  system,  606,  609  n- 
vested  rights,  606,  609  n. 
marriage  contracts,  613,  617,  622  n. 
Convention  of  the  Hague,  762,  763. 
French,  German,  and  Italian  law,  623  n. 

MECHANICS'   LIENS, 
law  governing,  281  n. 

MORTGAGES, 

capacity  to  make,  240,  243.  - 

French,  German,  and  Italian  law,  240  n.,  245  n. 
form,  269. 

French,  German,  and  Italian  law,  270  n. 
validity  and  interpretation,  274. 

French,  German,  and  Italian  law,  281  n. 

MORTMAIN  ACTS, 

application  of,  659,  605. 

MOVABLES, 

assignment  for  benefit  of  creditors,  316,  321  n. 
assignment  in  bankruptcy,  733,  736,  741. 

French,  German,  and  Italian  law,  753-755  n. 
attachment  of  intangible  property,  329,  331,  338  n, 

tangible  property,  291  n. 
capacity  to  transfer,  see  Capacity, 
chattel  mortgages,  292,  301,  303,  307  n. 
conditional  sales,  307,  309,  310  n. 

French,  German,  and  Italian  law,  316  n. 
distribution,  upon  death.  620. 

Convention  of  the  Hague,  760. 

French,  German,  and  Italian  law,  680-681  n. 
effect  of  divorce,  505  n. 

German  law,  565  n. 
effect  of  judgment  in  rem,  105  n. 
effect  of  marriage,  592. 

change  of  domicile,  594,  602. 

Convention  of  the  Hague,  702,  763. 
gift  causa  morti.'^,  292  n. 

French,  German,  and  Italian  law,  292  n. 
limitation  of  actions,  60. 
situs  for  purpose  of  administration,  715  n. 
statute  of  frauds,  25(;,  2.56  n.,  257  n. 
taxation  of  intangible  personalty,  ."..'JS  n.,  339  n. 

tangible  personalty,  291  n. 


.      INDEX.  779 

[The  figures  refer  to  pages.] 
MOVABLES— Continued. 

transfer  of  intangible  personalty,  322,  324.  320  n. 

French,  German,  and  Italian  law,  329  n. 
transfer  of  tangible  personalty,  281-322. 

French,  German,  and  Italian  law,  202  n.,  31G  n. 
transfer  of  vessels,  285,  31G  n, 
trusts,  617,  639  n.,  654,  659  a. 
see  Sales. 


NATIONALITY, 

as  criterion  of  personal  law,  217  n. 

NEGOTIABLE  INSTRUMENTS, 
see  Bills  and  Notes. 

NONENFORCEMENT  AND  NONRECOGNITION  OF  FOREIGN  LAW, 

general  grounds, 

contrary  to  abstract  justice, 

detriment  to  residents  of  forum,  316,  321  n.,  322  n. 

inability  to  do  justice  to  all  parties  concerned,  493,  509  il. 

lack  of  reciprocity,  15,  156. 

penal  cause  of  action,  31-50. 
contrary  to  express  statute  of  forum,  292.  390  n.,  392,  397  n.,  407  n. 
^    contrary  to  public  policy  of  forum,  13.  14,  14  n. 
"-  evasion  of  la\^  of  forum,  521,  528,  535  n. 

contrary  to  pure  morals,  400,  523,  524,  524  n.,  535  n. 
in  particular  instances, 

administration  of  estates,  683. 

assignment  for  the  benefit  of  creditors,  316,  321  n.,  322  n. 

assignment  in  bankruptcy,  741. 

capacity,   228. 

French  and  German  law,  239,  240  n. 
chattel  mortgages,  303. 
conditional  sales,  307. 

French,  German,  and  Italian  law,  316  n. 
contracts,  392.  397,  400.  459,  467  n. 

French  and  Italian  law,  395  n.,  468  n. 
corporations,  252  n. 
guardianship,  720  n. 
legitimation,  576.  583. 
marital  rights,  622  n. 

marriage,  521,  523,  524,  524  n.,  528,  535  n. 
matrimonial  property,  610. 
receiverships,  722. 
torts,  474,  493,  497.  501  n. 

French  and  German  law,  476  n.,  502  n. 

OBLIGATIONS. 

discharge  408,  469  n. 
law  governing,  340,  509. 

PARENT  AND  CHILD, 

control  of  parents  over  children,  622  n. 

duty  to  support,  623  n. 

French,  German,  and  Italian  law,  624  n. 

PARTNERSHIP, 

liabilitj-  of  special  partner,  405. 
French  and  German  law,  409  n. 

PATENTS, 

infringement  of  foreign,  501  n. 

French  and  German  law,  501  n. 


780  INDEX. 

[The  figures  refer  to  pages.J 

PAY.MENT, 

amouut  recoverable, 

calculated  by  real  or  nominal  par,  344  n. 
currency,  344. 
to  husband  as  discharge  of  wife's  debt,  345. 

PENAL   LAWS, 

enforcement,  31-50. 

PERFORMANCE, 

impossibility,  34S  n. 

matters  relating  to,  343,  343  n.,  344,  344  n.,  345. 

French,  German,  and  Italian  law,  348  n. 
nonperformance, 

discharge  of  obligations  by  reason  of,  468  n. 

effect,  348,  350,  371. 
place  of,  343  n. 

German  law,  355  n. 
when  prohibited,  378. 

PERSONAL  PROPERTY, 

see  Movables. 

POWER, 

execution  of,  in  will,  672,  677. 

PRESUMPTIONS, 

see  Procedure. 

PRINCIPAL  AND  AGENT, 

contracts  by  agents,  liability  of  principal,  355,  367,  410. 

see  Contracts, 
implied  authority  of  agents,  410. 

French  and  German  law,  415  n. 
implied  authority  of  shipmaster,  409. 

French,  German,  and  Italian  law,  415  n. 
torts  by  agents,  liability  of  principal,  474,  480,  502,  508  n. 

French,  German,  and  Italian  law,  502  n.,  508,  509  n. 
see  Torts. 

PRINCIPAL  AND  SURETY, 
law  governing,  415,  427. 
German  law,  418  n. 

PROBATE, 

conclusiveness,  680  n. 
jurisdiction  to  grant,  680  n. 

PROCEDURE, 

damages,  75-84. 

French,  German,  and  Italian  law,  348  n. 
distinguished  from  obligation,  53,  56,  59. 
evidence,  59,  61  n.,  62  n. 

French  and  Italian  law,  85  n. 
exemptions,  75  n. 
form  of  action,  61  n. 
parties,  01  n. 
presumptions,  62  n. 
set-off,  75  n. 

French  and   German  law,   85  n. 
statute  of  frauds,  254-262. 

French,  German,  and  Italian  law,  270  n. 
statute  of  limitations,  62-74. 

French,  German,  and  Italian  law,  85  n. 

PUBLIC  ORDER, 
in  general,  14  n. 

see   Nonenforcement   and   Nonrecognition    of   Foreign   Law. 


INDEX.  781 

[The  figures  refer  to  pages.] 
PUBLIC  POLICY, 

in  general,  13,  14,  14  n. 

see  Nonenforcement  and  Nonrecognition  of  Foreign  Law. 

QUASI  CONTRACTS, 

law  governing,  34S,  350,  50S  n.,  509  n. 


REAL  ESTATE, 
see  Immovables. 

RECEIVERS, 
ancillary, 

appointment,  753  n. 

duty  to  remit,  753  n. 
effect  of  voluntary  assignment,  748  n. 
jurisdiction  to  appoint.   732  n. 
privity  between,  in  different  jurisdictions,  732  n. 
rigbts  of  creditors,  748. 
suits  by  and  against,  722,  72(3,  732  n. 

RECIPROCITY. 

necessity  of  existence,  15,  150. 

German  and  Italian  law,  167  n.,  IGS  n.,  175  n.,  395  n. 
REMEDY, 

see  Procedure. 

RENVOI, 

in  general,  17-30. 

Convention  of  the  Hague,  30  n. 

French,  German,  and  Italian  law,  30  n. 

RESIDENCE, 

equivalent  to  domicile,  194  n. 

RETORSION, 

French  and  Italian  law,  95  n.,  131  n.,  167  n. 
German  law,  art.  31,  Law  Intr.  Civ.  Code. 


SALES. 

law  governing,  395,  397  n. 
German  law,  354  n. 

see  Movables ;    Transfer. 

SALVAGE, 

law  governing,  508  n. 

SET-OFF, 

see  Procedure. 

SHIPMASTER, 
authority,  409. 

French,  German,  and  Italian  law,  415  n. 

STAMP  LAWS, 

effect  upon  contract,  250  n. 

STATUS, 

capacity  as,  218,  219,  231. 

effect  of  foreign   penal   law.   239  n. 

French,  German,  and  Italian  law.  239.  240  n. 
domicile  and  nationality,  as  basis  of,  194  n.  195. 

French,  German,  and  Italian  law,  217  n. 
foreign,  unknown  to  law  of  forum,  239  n. 

French  law,  239  n. 
of  assignees  for  benefit  of  creditors,  316.  .^21  n..  .322  n. 

in  bankruptcy,  7.33,  736.  741. 

French,  German,  and  Italian  law,  753-755  n. 


782  INDEX. 

[The  figures  refer  to  pages.] 
STATU  S— Con  t  inned , 

of  executors  and  administrators,  6S3. 

Frencli,  German,  and  Italian  law,  716  n. 
of  foreign  corporations,  246,  '252  n. 

French,  German,  and  Italian  law,  253  n. 
of  guardian  and  ward,  716,  720  n. 

French,  German,  and  Italian  law,  721  n. 
of  husband  and  wife,  622  n. 

French,  German,  and  Italian  law,  624  n. 
of  parent  and  child,  622,  623  n, 

children  by  adoption,  571  n.,  591. 

French,  German,  and  Italian  Jaw,  591  n. 
French,  German,  and  Italian  law.  624  n. 
legitimacy,  540  n.,  566.  571,  576.  578.  583. 
French,  German,  and  Italian  law,  591  n. 
of  receivers,  722,  726,  732  n.,  748  n. 

STATUTE  OF  FRAUDS, 
see  Procedure. 

STATUTE  OF  LIMITATIONS, 
see  procedure. 

STOCK.  SHARES  OF, 
attachment,  338  n. 

situs  of,  for  purpose  of  administration,  715  n. 
taxation,  339  n. 
transfer,  322,  323  n. 

STOCKHOLDERS, 

status,  252  n.  , 

statutory  liability, 

enforcement  in  other  jurisdictions,  .509  n. 

power  of  foreign  state  to  impose,  509  n. 

SUCCESSION, 
intestate, 

with  respect  to  immoA'ables,  628. 

determination  and  capacity  of  heirs,  578,  587. 

Convention  of  the  Hague,  760. 
election, 

necessity  of,  between  testamentary  provision  and  dower,  639. 
French,  German,  and  Italian  law,  680,  681  n. 
•with  respect  to  movables, 

determination  of  distributees,  626. 
Convention  of  the  Hague,  760. 
capacity  of  distributees  to  take, 
adopted  children,  571  u. 
Convention  of  the  Hague  700. 
legitimated  children,  571  n. 
Convention  of  the  Hague,  761. 
effect  of  subsequent  retroactive  legislation,  029  n. 
French,  German,  and  Italian  law,  680,  681  n. 
rights  of  state  in  which  property  found,  if  no  natural  heirs,  629  n. 
Frenda  law,  629  n. 
testamentary,  see  Wills. 

SUPPORT, 

French,  German,  and  Italian  law,  565  n.,  G24-625  n. 
of  children  by  parents,  623  u. 

SURETYSHIP, 

see  Principal  and  Surety. 

,  TAXATION, 

based  upon  domicile,  217  n. 

of  intangible  property,  338  n.,  339  n. 


INDEX.  7g3 

[The  figures  refer  to  pages.] 
TAXATION— Continued. 

of  successions,  217  n.,  339  n.,  GSO  n, 
of  transfers  inter  vivos,  217  n.,  33t>  n. 

TORTS, 

collisions, 

at  sea,  502,  508  n. 

French,  German,  and  Italian  law,  508,  509  n. 
in  territorial  waters,  474.  508  n. 

French,  German,  and  Italian  law,  508  n. 
common  law, 

enforcement  in  other  states,  497. 

trespass  to  foreign  land,  501  n. 
law  governing,  409,  471,  474,  478,  480. 
amount  of  recovery,  81 
limitation  of  actions,  68,  69. 
place  where  committed,  483,  486  n.,  493, 
survival  of  action,  493  n. 
French  and  German  law,  478  n.,  487  n.,  501  n.,  502  n. 
■    high   seas,   wrongful   death   upon,   508  n. 
statutory, 

enforcement  in  other  states.  487,  493,  497,  501  n. 
law  governing,  487,  491,  493. 

amount  of  recovery,  491.  493  n.,  497  n. 
limitation   of   action,    71 
parties  plaintifC,  487,  490  n. 

TRADE-MARKS, 

infringement  of  foreign,  501  n. 

French,  German,  and  Italian  law,  501  n. 

TRUSTS, 

in  immovables,  630  n. 
in  movables,  - 

created  inter  vivos,  617. 

by  will,  639  n.,  654,  659  n. 

UNCIVILIZED  COUNTRIES, 
law  governing  acts  in,  209  n. 

USURY, 

defense  by  drawer  or  indorser  of  bill  of  exchange,  437  n. 

surety.  416  n. 
law  governing,  379-392. 

French  and  German  law,  392  n. 

VESSELS, 

bottomry,  4GS  n. 

French,  German,  and  Italian  law,  4G8  n. 
collisions, 

at  sea,  502,  508  n. 

French,  German,  and  Italian  law,  508  n.,  509  n. 
in  territorial  waters,  474,  508  n. 

French,  German  and  Italian  law,  .508  n. 
death  upon  high  seas,  508  n. 
implied  authority  of  master,  409. 

French,  German,  and  Italian  law,  415  n. 
mortgage  and  sale,  285.  316  n.,  322  n. 

VESTED  RIGHTS. 

recognition,  301,  303,  309.  594,  598.  602,  600.  613  n.,  695  n.,  715    729 
French,  German,  and  Italian  law,  239  n.,  023,  624  n.,  681  n. 


784  INDEX. 

[The  figures  refer  to  pages.] 
WAREHOUSE   RECEIPTS, 
validity,  316  n. 

WILLS, 

relating  to  inamovables, 

capacity  of  devisees,  627,  628. 

Convention  of  the  Hague,  760. 
in  case  of  legitimation  or  adoption,  571  n. 
capacity  of  testator,  629. 

Convention  of  the  Hague,  760. 
French,  German,  and  Italian  law,  681  n. 
construction  and  interpretation,  642. 

French,  German,  and  Italian  law,  681,  682  n. 
effect  and  operation.  630  n. 

Convention  of  the  Hague,  761. 
conversion  of  realty  into  personalty,  630  n. 
form.  629  n. 

Convention  of  the  Hague,  761. 
French,  German,  and  Italian  law,  681  n. 
intrinsic  validity,  630  n. 

Convention  of  the  Hague,  761- 
French,  German,  and  Italian  law,  681,  682  n. 
revocation  by  subsequent  birth  of  children,  630  n. 
Convention  of  the  Hague,  761. 
relating  to  movables, 

capacity  of  legatees,  571  n. 
capacity  of  testator,  6.30. 

French,  German,  and  Italian  law.  681  n. 
construction  and  interpretation,  3.59  n.,  637,  6.39,  639  n. 

•     French,  German,  and  Italian  law,  681,  682  n. 
effect  and  operation,  639  n. 

Convention  of  the  Hague,  761. 
conversion  of  personalty  into  realty,  639  n. 
form,  6.30. 

Convention  of  the  Hague,  761. 
effect  of  change  of  domicile,  630,  637  n. 
French,  German,  and  Italian  law,  681  n. 
intrinsic  validity,  654-672. 

Convention  of  the  Hague,  761. 
French,  German,  and  Italian  law,  681-682  n. 
power,  execution  in  will,  672,  677. 
revocation, 

by  marriage,  647. 

by  subsequent  birth  of  children,  639  n. 

Convention  of  ihe  Hague,  761. 


■WEST  PUBLISHING  CO.,  PRINTERS,   ST.  PAUL,  MINN. 


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